the defendants would allege in their answerthose dealing with a mere question

of law which the courts would have to decideand that, the demurrer having been
sustained, if the plaintiffs should insistthey could do no lessupon alleging the
same facts as those set out in their complaint and if another demurrer were
afterwards set up, he would be obliged to dismiss said complaint with costs against
the plaintiffsin spite of being undoubtedly convinced in the instant case that the
plaintiffs absolutely lack the right to bring the action stated in their complaint.
Being of the opinion that the emendation of the indicated defects is not necessary
as in this case what has been done does not prejudice the partiesthe appellate
court will now proceed to decide the suit according to its merits, as found in the
record and to the legal provisions applicable to the question of law in controversy so
that unnecessary delay and greater expense may be avoided, inasmuch as, even if
all the ordinary proceedings be followed, the suit would be subsequently decided in
the manner and terms that it is now decided in the opinion thoughtfully and
conscientiously formed for its determination.
In order to decide whether the plaintiff's are or are not entitled to invoke, in their
favor, the provisions of article 811 of the Civil Code, and whether the same article is
applicable to the question of law presented in this suit, it is necessary to determine
whether the property enumerated in paragraph 5 of the complaint is of the nature
of reservable property; and, if so, whether in accordance with the provision of the
Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio
Isabelo Florentino) who inherited said property from her son Apolonio Florentino III
(born after the death of his father Apolonio Isabelo) had the obligation to preserve
and reserve same for the relatives, within the third degree, of her aforementioned
deceased son Apolonio III.
The above mentioned article reads:
"Any ascendant who inherits from his descendant any property acquired by the
latter gratuitously from some other ascendant, or from a brother or sister, is obliged
to reserve such of the property as he may have acquired by operation of law for the
benefit of relatives within the third degree belonging to the line from which such
property came."

During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon
two children were born, namely the defendant Mercedes Florentino and Apolonio
Florentino III (born after the death of his father). At the death of Apolonio Isabelo
Florentino under a will, his eleven children succeeded to the inheritance he left, one
of whom, the posthumos son Apolonio III, was given, as his share, the
aforementioned property enumerated in the complaint. In 1891 the said posthumos
son Apolonio Florentino III died and was succeeded by his legitimate mother
Severina Faz de Leon, who inherited the property he left and who on dying,
November 18, 1908, instituted by will as her sole heiress her surviving daughter,
Mercedes Florentino, the defendant herein, who took possession of all property left
by her father, same constituting the inheritance. Included in said inheritance is the
property, specified in paragraph 5 of the complaint, which had been inherited by the
posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino,
and which, at the death of the said posthumos son, had in turn been inherited by his
mother, Severina Faz de Leon. Even if Severina left in her will said property,.
together with her own, to her only daughter and forced heiress, Mercedes
Florentino, nevertheless this property had not lost its reservable nature inasmuch
as it originated from the common ancestor of the litigants, Apolonio Isabelo; was
inherited by his son Apolonio III; was transmitted by same (by operation of law) to
his legimate mother and ascendant, Severina Faz de Leon.
The posthumos son, Apolonio Florentino III, acquired the property, now claimed
by his brothers, by a lucrative title or by inheritance from his aforementioned
legitimate father, Apolonio Isabelo Florentino II. Although said property was
inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound,
according to article 811 of the Civil Code, to reserve the property thus acquired for
the benefit of the relatives, within the third degree, of the line from which such
property came.
According to the provisions of law, ascendants do not inherit the reservable
property, but its enjoyment, use or trust, merely for the reason that said law
imposes the obligation to reserve and preserve same for certain designated persons
who, on the death of the said ascendantsreservists, (taking into consideration the
nature of the line from which such property came) acquire the ownership of said
property in fact and by operation of law in the same manner as forced heirs (because
they are also such}said property reverts to said line as long as the aforementioned
persons who, from the death of the ascendantreservists, acquire in fact the right

of reservatarios (persons for whom property is reserved), and are relatives, within
the third degree, of the descendant from whom the reservable property came.
Any ascendant who inherits from his descendant any property, while there are
living, within the third degree, relatives of the latter, is nothing but a life
usufructuary or a fiduciary of the reservable property received. He is, however, the
legitimate owner of his own property which is not reservable property and which
constitutes his legitime, according to article 809 of the Civil Code. But if,
afterwards, all of the relatives, within the third degree, of the descendant (from
whom came the reservable property) die or disappear, the said property becomes
free property, by operation of law, and is thereby converted into the legitime of the
ascendant heir who can transmit it at his death to his legitimate successors or
testamentary heirs. This property has now lost its nature of reservable property,
pertaining thereto at the death of the relatives, called reservatarios, who belonged
within the third degree to the line f rom which such property came.
Following the order prescribed by law in legitimate succession, when there are
relatives of the descendant within the third degree, the right of the nearest relative,
called reservatario, over the property which the reservista (person holding it subject
to reservation) 'should return to him, excludes that of the one more remote. The
right of representation cannot be alleged when the one claming same as
a reservatario of the reservable property is not among the relatives within the third
degree belonging to the line from which such property came, inasmuch as the right
granted by the Civil Code in article 811 is in the highest degree personal and for the
exclusive benefit of designated persons who are the relatives, within the third
degree, of the person from whom the reservable property came. Therefore, relatives
of the fourth and the succeeding degrees can never be considered
asreservatarios, since the law does not recognize them as such.
In spite of what has been said relative to the right of representation on the part
of one alleging his right as reservatariowho is not within the third degree of
relationship, nevertheless there is right of representation on the part
ofreservatarios who are within the third degree mentioned by law, as in the case of
nephews of the deceased person from whom the reservable property came.
These reservatarios have the right to represent their ascendants (fathers and
mothers) who are the brothers of the said deceased person and relatives within the
third degree in accordance with article 811 of the Civil Code.

In this case it is conceded without denial by defendants, that the plaintiffs

Encarnacion, Gabriel and Magdalena are the legitimate children of the first
marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel,
Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo
Florentino II, and children of his deceased son, Jose Florentino; that the same have
the right to represent their aforementioned f ather, Jose Florentino; that Emilia,
Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased
Espirita Florentino, one of the daughters of the deceased Apolonio Isabelo
Florentino II, and represent the right of their aforementioned mother; and that the
other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate
father Pedro Florentino, one of the sons of the aforementioned Apolonio Isabelo
Florentino II. It is a fact, admitted by both parties, that the other children of the
first marriage of the deceased Apolonio Isabelo Florentino II died without issue so
that this decision does not deal with them.
There are then seven "reservatarios" who are entitled to the reservable property left
at the death of Apolonio III; the posthumos son of' the aforementioned Apolonio
Isabelo II, to wit, his three children of his first marriageEncarnacion, Gabriel,
Magdalena; his three children, Jose, Espirita and Pedro who are represented by
their own twelve children respectively; and Mercedes Florentino, his daughter by a
second marriage. All of the plaintiffs are the relatives of the deceased posthumos
son, Apolonio Florentino III, within the third degree (four of whom being his
halfbrothers and the remaining twelve being his nephews as they are the children of
his three half-brothers). As the first four are his relatives within the third degree in
their own right and the other twelve are such by representation, all of them are
indisputably entitled asreservatarios to the property which came from the common
ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his lifetime, and in turn by inheritance to his legitimate mother, Severina Faz de Leon,
widow of the aforementioned Apolonio Isabelo Florentino II.
In spite of the provision of article 811 of the Civil Code already cited, the trial
judge refused to accept the theory of the plaintiffs and, accepting that of the
defendants, absolved the latter from the complaint on the ground that said article is
absolutely inapplicable to the instant case, inasmuch as the def endant Mercedes
Florentino survived her brother, Apolonio III, from whom the reservable property
came and her mother, Severina Faz de Leon, the widow of her father, Apolonio
Isabelo Florentino II; that the defendant Mercedes, being the only daughter of

Severina Faz de Leon, is likewise her forced heiress; that when she inherited the
property left at the death of her mother, together with that which came from her
deceased brother Apolonio III, the fundamental object of article 811 of the Code was
thereby complied with, inasmuch as the danger that the property coming from the
same line might fall into the hands of strangers had been avoided; and that the hope
or expectation on the part of the plaintiffs of the right to acquire the property of the
deceased Apolonio III never did come into existence because there is a forced heiress
who is entitled to such property.
The judgment appealed from is also founded on the theory that article 811 of the
Civil Code does not destroy the system of legitimate succession and that the
pretension of the plaintiffs to apply said article in the instant case would be
permitting the reservable right to reduce and impair the forced legitime which
exclusively belongs to the defendant Mercedes Florentino, in violation of the precept
of article 813 of the same Code which provides that the testator cannot deprive his
heirs of their legitime, except in the cases expressly determined by law. Neither can
he impose upon it any burden, condition, or substitution of any kind whatsoever,
saving the provisions concerning the usufruct of the surviving spouse, citing the
decision of the Supreme Court of Spain of January 4, 1911.
The principal question submitted to the court for decision consists mainly in
determining whether the property left at the death of Apolonio III, the posthumos
son of Apolonio Isabelo II, was or was not invested with the character of reservable
property when it was received by his mother, Severina Faz de Leon.
The property enumerated by the plaintiffs in paragraph 5 of their complaint
came, without any doubt whatsoever, from the common ancestor Apolonio Isabelo II,
and when, on the death of Apolonio III without issue, the.same passed by operation
of law into the hands of his legitimate mother, Severina Faz de Leon, it became
reservable property, in accordance with the provision of article 811 of the Code, with
the o object that the same should not fall into the possession of persons other than
those comprehended within the order of succession traced by the law from Apolonio
Isabelo II, the source of said property. If this property was in fact clothed with the
character and condition of reservable property when Severina Faz de Leon inherited
same from her son Apolonio III, she did not thereby acquire the dominion or right of
ownership but only the right of usufruct or of fiduciary, with the necessary
obligation to preserve and to deliver or return it as such reservable property to her

deceased son's relatives within the third degree, among whom is her daughter,
Mercedes Florentino.
Reservable property neither comes, nor falls under, the absolute dominion of the
ascendant who inherits and receives same from his descendant, therefore it does not
form part of his own property nor become the legitimate of his forced heirs. It
becomes his own property only in case that all the relatives of his descendant shall
have died (reservista), in which case said reservable property losses such character.
With full right Severina Faz de Leon could have disposed in her will of all her
own property in favor of her only living daughter, Mercedes Florentino, as forced
heiress. But whatever provision there is in her will concerning the reservable
property received from her son Apolonio III, or rather, whatever provision will
reduce the rights of the otherreservatarios, the half brothers and nephews of her
daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her
own and she has only the right of usufruct or of fiduciary, with the obligation to
preserve and to deliver same to the reservatarios, one of whom is her own daughter,
Mercedes Florentino.
It cannot reasonably be affirmed, founded upon an express provision of law, that
by operation of law all of the reservable property, received during lifetime by
Severina Faz de Leon from her son, Apolonio III, constitutes or forms part of the
legitime pertaining to Mercedes Florentino. If said property did not come to be the
legitimate and exclusive property of Severina Faz de Leon, her only legitimate and
forced heiress, the defendant Mercedes, could not inherit all by operation of law and
in accordance with the order of legitimate succession, because the other relatives of
the deceased Apolonio III, within the third degree, as well as herself are entitled to
such reservable property.
For this reason, in no manner can it be claimed that the legitime of Mercedes
Florentino, coming from the inheritance of her mother Severina Faz de Leon, has
been reduced and impaired; and the application of article 811 of the Code to the
instant case in no way prejudices the rights of the defendant Mercedes Florentino,
inasmuch as she is entitled to a part only of the reservable property, there being no
lawfull or just reason which serves as real foundation to disregard the right to
Apolonio III's other relatives, within the third degree, to participate in the
reservable property in question. As these relatives are at present living, claiming for

it with an indisputable right, we cannot find any reasonable and lawful motive why
their rights should not be upheld and why they should not be granted equal
participation with the defendant in the litigated property.
The claim that because of Severina Faz de Leon's forced heiress, her daughter
Mercedes, the property received from the deceased son Apolonio III lost the
character, previously held, of reservable property; and that the mother, the said
Severina, therefore, had no further obligation to reserve same for the relatives
within the third degree of the deceased Apolonio III, is evidently erroneous for the
reason that, as has been already stated, the reservable property, left in a will by the
aforementioned Severina to her only daughter Mercedes, does not form part of the
inheritance left by her death nor of the legitimate of the heiress Mercedes. Just
because she has a forced heiress, with a right to her inheritance, does not relieve
Severina of her obligation to reserve the property which she received from her
deceased son, nor did same lose the character of reservable property, held before
the reservatarios received same.
It is true that when Mercedes Florentino, the heiress of the reservistaSeverina,
took possession of the property in question, same did not pass into the hands of
strangers. But it is likewise true that the said Mercedes is not the
onlyreservataria. And there is no reason founded upon law and upon the principle of
justice why the other reservatarios, the other brothers and nephews, relatives within
the third degree in accordance with the precept of article 811 of the Civil Code,
should be deprived of portions of the property which, as reservable property, pertain
to them.
From the foregoing it has been shown that the doctrine announced by the
Supreme Court of Spain on January 4, 1911, for the violation of articles 811, 968
and consequently of the Civil Code is not applicable in the instant case.
Following the provisions of article 813, the Supreme Court of Spain held that the
legitime of the forced heirs cannot be reduced or impaired and said article is
expressly respected in this decision.
However, in spite of the efforts of the appellee to defend their supposed rights, it
has not been shown, upon any legal foundation, that the reservable property
belonged to, and was under the absolute dominion of, the reservista, there being

relatives within the third degree of the person. from whom same came; that said
property, upon passing into the hands of the forced heiress of the
deceasedreservista, formed part of the legitime of the former; and that the said
forced heiress, in addition to being areservataria, had an exclusive right to receive
all of said property and to deprive the other reservatarios, her relatives within the
third degree, of certain portions thereof.
Concerning the prayer in the complaint relative to the indemnity for damages
and the delivery of the fruits collected, it is not proper to grant the first for there is
no evidence of any damage which can give rise to the obligation of refunding same.
As to the second, the delivery of the fruits produced by the land forming the
principal part of the reservable property, the defendants are undoubtedly in duty
bound to deliver to the plaintiffs six-sevenths of the fruits or rents of the portions of
land claimed in the complaint, in the quantity expressed in paragraph 11 of the
same, from January 17, 1918, the date the complaint was filed; and the remaining
seventh part should go to the defendant Mercedes.
For the foregoing reasons it follows that with the reversal of the order of decision
appealed from we should declare, as we hereby do, that the aforementioned
property, inherited by the deceased Severina Faz de Leon from her .son Apolonio
Florentino III, is reservable property; that the plaintiffs, being relatives of the
deceased Apolonio III within the third degree, are entitled to six-sevenths of said
reservable property; that the defendant Mercedes is entitled to the remaining
seventh part thereof; that the latter, together with her husband Angel Encarnacion,
shall deliver to the plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from
said portion of the land and, of the quantity claimed, from January 17, 1918, until
fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in
the complaint is denied, without special findings as to the costs of both instances. So
ordered.
Arellano, C. J., Johnson, Araullo,Street, Malcolm, and Avancea, JJ.,concur.
Order reversed.

No. L-34395. May 19, 1981.

BEATRIZ L. GONZALES, petitioner, vs.COURT OF FIRST INSTANCE OF

MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDEZ,
ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO
LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA
LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO
LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA
LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y
LOBREGAT, ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y

LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y

LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y
LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and
the ESTATE OF DONA FILOMENA ROCKS DE LEGARDA, respondents.
Appeal; In an appeal under Republic Act No. 5440 only legal issues can be raised.In
an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed
facts Since on the basis of the stipulated facts the lower court resolved only the issue of
whether the properties in question are subject to reserva troncal, that is the only legal issue
to be resolved in this appeal.
Property; Succession; Reserva
Troncal
explained.In reserva
troncal, (1)
a
descendant inherited or acquired by gratuitous title property from an ascendant or from a
brother or sister; (2) the same property is inherited by another ascendant or is acquired by
him by operation of law from the said descendant, and (3) the said ascendant should reserve
the said property for the benefit of relatives who are within the third degree from the
deceased descendant (prepositus) and who belong to the line from which the said property
came.
Same; Same; Same.So, three transmissions are involved: (1) a first transmission by
lucrative title (inheritance or donation) from an ascendant or brother or sister to the
deceased descendant; (2) a posterior transmission, by operation of law (intestate succession
or legitime) from the deceased descendant (causante de la reserva)in favor of another
ascendant, the reservor or reservista, which two transmissions precede the reservation, and
(3) a third transmission of the same property (in consequence of the reservation) from the
reservor to the reservees (reservatarios) or the relatives within the third degree from the
deceased descendant belonging to the line of the first ascendant, brother or sister of the
deceased descendant.
Same; Same; Same.The persons involved in reserva troncal are (1) the ascendant or
brother or sister from whom the property was received by the descendant by lucrative or
gratuitous title, (2) the descendant or prepositus (propositus) who received the property, (3)
the reservor (reservista), the other ascendant who obtained the property from
the prepositus by operation of law and (4) the reservee (reservatario) who is within the third
degree from the prepositusand who belongs to the line (linea o tronco) from which the
property came and for whom the property should be reserved by the reservor.
Same; Same; The reservor is a usufructuary of the reservable property and holds title
subject to a resolutory condition.The reservor has the legal title and dominion to the
reservable property but subject to the resolutory condition that such title is extinguished if

the reservor predeceased the reservee. The reservor is a usufructuary of the reservable
property. He may alienate it subject to the reservation. The transferee gets the revocable
and conditional ownership of the reservor. The transferees rights are revoked upon the
survival of the reservees at the time of the death of the reservor but become indefeasible
when the reservees predecease the reservor.
Same; Same; The reservee has only an inchoate right. He cannot impugn a conveyance
made by the reservor.On the other hand, the reservee has only an inchoate, expectant or
contingent right. His expectant right would disappear if he predeceased the reservor. It
would become absolute should the reservor predecease the reservee. The reservee cannot
impugn any conveyance made by the reservor but he can require that the reservable
character of the property be recognized by the purchaser.
Same; Same; A reservee may sell his right but may not renounce it.There is a holding
that the renunciation of the reservees right to the reservable property is illegal for being a
contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there
is a dictum that the reservees right is a real right which he may alienate and dispose of
conditionally. The condition is that the alienation shall transfer ownership to the vendee
only if and when the reservee survives the reservor (Sienes vs. Esparcia, 111 Phil. 349,
353).
Same; Same; Case at bar involve a reserva troncal.In the instant case, the properties
in question were indubitably reservable properties in the hands of Mrs. Legarda
Undoubtedly, she was a reservor. The reservation became a certainty when at the time of
her death the reservees or relatives within the third degree of theprepositus Filomena
Legarda were living or they survived Mrs. Legarda.
Same; Same; All reservees are equally entitled to share in reserva troncal.This Court
noted that, while it is true that by giving the reservable property to only one reservee it did
not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the
reservor was only one of the reservees and there is no reason founded upon law and justice
why the other reservees should be deprived of their shares in the reservable property (pp. 8945).

APPEAL from the decision of the Court of First Instance of Manila.

The facts are stated in the opinion of the Court.
AQUINO, J.:

Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance
of Manila, dismissing her complaint for partition, accounting, reconveyance and
damages and holding, as not subject toreserva troncal, the properties which her
mother Filomena Roces inherited in 1943 from Filomena Legarda (Civil Case No.
73335). The facts are as follows: Benito Legarda y De la Paz, the son of Benito
Legarda y Tuason, died in Manila on June 17, 1933. He was survived by his widow,
Filomena Roces, and their seven children: four daughters named Beatriz, Rosario,
Teresa and Filomena and three sons named Benito, Alejandro and Jose.
On July 12, 1939, the real properties left by Benito Legarda y Tuason were
partitioned in three equal portions by his daughters, Consuelo and Rita, and the
heirs of his deceased son Benito Legarda y De la Paz who were represented by
Benito F. Legarda.
Filomena Legarda y Roces died intestate and without issue on March 19, 1943.
Her sole heiress was her mother, Filomena Roces Vda. de Legarda.
Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially
to herself the properties which she inherited from her deceased daughter, Filomena
Legarda. The said properties consist of the following:
(a) Savings deposit in the National City Bank of New York with a credit balance of
P3,699.63.
(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in
certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty
Company, Insular Life Assurance Company and the Manila Times.
(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260,
80261 and 57512 of the Manila registry of deeds.
1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203,
48206, 48160 and 48192 of the Manila registry of deeds;
l/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now
Quezon City; l/14th of the property described in TCT No. 966 of the registry of deeds of
Baguio;

l/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila
registry of deeds;
l/7th of the lots and improvements at 181 San Rafael described in TCT Nos. 50495 and
48161 of the Manila registry of deeds;
l/7th of the property described in TCT No. 48163 of the Manila registry of deeds
(Streets);
l/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of
deeds (Streets and Estero);
2/21st of the property described in TCT No. 13458 of the registry of deeds of Tayabas.

These are the properties in litigation in this case. As a result of the affidavit of
adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda
as co-owner of the properties heldproindiviso by her other six children.
Mrs. Legarda on March 6, 1953 executed two handwritten identical documents
wherein she disposed of the properties, which she inherited from her daughter, in
favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren
in all). The document reads:
A mis hijos.
Dispongo que se reparta a todos mis nietos, hijos de Ben, Mandu y Pepito, los bienes
que he heredado de mi difunta hija Filomena y tambien los acciones de la Destileria La
Rosario recientemente comprada a los hermanos Valdes Legarda.
De los bienes de mi hija Filomena se deducira un lote de terreno que yo he donada a las
Hijas de Jesus, en Guipit.
La casa No. 181 San Rafael, la cedo a mi hijo Mandu, solo la casa; proque ella esta
construida sobre terreno de los hermanos Legarda Roces.
(Sgd.) FILOMENA ROCES LEGARDA
6 Marzo 1953

During the period from July, 1958 to February, 1959 Mrs. Legarda and her six
surviving children partitioned the properties consisting of the one-third share in the

estate of Benito Legarda y Tuason which the children inherited in representation of

their father, Benito Legarda y De la Paz.
Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a
holographic will in the order dated July 16, 1968 of the Court of First Instance of
Manila in Special Proceeding No. 70878, Testate Estate of Filomena Roces Vda. de
Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs.
Gonzales, CA-G.R. No. 43480-R, July 30, 1976.
In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix,
filed on May 20, 1968 a motion to exclude from the inventory of her mothers estate
the properties which she inherited from her deceased daughter, Filomena, on the
ground that said properties are reservable properties which should be inherited by
Filomena Legardas three sisters and three brothers and not by the children of
Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the
administrator, Benito F. Legarda.
Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20,
1968 an ordinary civil action against her brothers, sisters, nephews and nieces and
her mothers estate for the purpose of securing a declaration that the said properties
are reservable properties which Mrs. Legarda could not bequeath in her holographic
will to her grandchildren to the ex elusion of her three daughters and her three sons
(SeePaz vs. Madrigal, 100 Phil. 1085).
As already stated, the lower court dismissed the action of Mrs. Gonzales. In this
appeal under Republic Act No. 5440 she contends in her six assignments of error
that the lower court erred in not regarding the properties in question as reservable
properties under article 891 of the Civil Code.
On the other hand, defendants-appellees in their six counter-assignments of
error contend that the lower court fired in not holding that Mrs. Legarda acquired
the estate of her daughter Filomena Legarda in exchange for her conjugal and
hereditary shares in the estate of her husband Benito Legarda y De la Paz and in
not holding that Mrs. Gonzales waived her right to the reservable properties and
that her claim is barred by estoppel, laches and prescription.
The preliminary issue raised by the private respondents as to the timeliness of
Mrs. Gonzales petition for review is a closed matter. This Court in its resolution of

December 16, 1971 denied respondents motion to dismiss and gave due course to
the petition for review.
In an appeal under Republic Act No. 5440 only legal issues can be raised under
undisputed facts. Since on the basis of the stipulated facts the lower court resolved
only the issue of whether the properties in question are subject to reserva
troncal, that is the only legal issue to be resolved in this appeal.
The other issues raised by the defendants-appellees, particularly those involving
factual matters, cannot be resolved in this appeal. As the trial court did not pass
upon those issues, there is no ruling which can be reviewed by this Court.
The question is whether the disputed properties are reservable properties under
article 891 of the Civil Code, formerly article 811, and whether Filomena Roces Vda.
de Legarda could dispose of them in her will in favor of her grandchildren to the
exclusion of her six children.
Did Mrs. Legarda have the right to convey mortis causa what she inherited from
her daughter Filomena to the reservees within the third degree and to bypass the
reservees in the second degreeor should that inheritance automatically go to the
reservees in the second degree, the six children of Mrs. Legarda?
As will hereinafter be shown that is not a novel issue or a question of first
impression. It was resolved in Florentino vs. Florentino, 40 Phil. 480. Before
discussing the applicability to this case of the doctrine in the Florentino case and
other pertinent rulings, it may be useful to make a brief discourse on the nature
ofreserva troncal, also called lineal familiar, extraordinaria o semi-troncal.
Much time, effort and energy were spent by the parties in their five briefs in
descanting on the nature of reserva troncal, which together with the reserva
viudal and reversion legal, was abolished by the Code Commission to prevent the
decedents estate from being entailed, to eliminate the uncertainty in ownership
caused by the reservation (which uncertainty impedes the improvement of the
reservable property) and to discourage the confinement of property within a certain
family for generations which situation allegedly leads to economic oligarchy and is
incompatible with the socialization of ownership.

The Code Commission regarded thereservas as remnants of feudalism which

fomented agrarian unrest. Moreover, the reservas, insofar as they penalize
legitimate relationship, is considered unjust and inequitable.
However, the lawmaking body, not agreeing entirely with the Code Commission,
restored the reserva troncal,a legal institution which, according to Manresa and
Castan Tobeas, has provoked questions and doubts that are difficult to resolve.
Reserva troncal is provided for in article 811 of the Spanish Civil Code, now
article 891, which reads:
ART. 811. El ascendiente que heredare de su descendiente bienes que este hubiese
adquirido por titulo lucrativo de otro ascendiente, o de un hermano, se halla obligado a
reservar los que hubiere adquirido por ministerio de la ley en favor de los parientes que
esten dentro del tercer grado y pertenezcan a la linea de donde los bienes proceden.
ART. 891. The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother or sister,
is obliged to reserve such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and who belong to the line from which
said property came.

In reserva troncal, (1) a descendant inherited or acquired by gratuitous title

property from an ascendant or from a brother or sister; (2) the same property is
inherited by another ascendant or is acquired by him by operation of law from the
said descendant, and (3) the said ascendant should reserve the said property for the
benefit of relatives who are within the third degree from the deceased descendant
(prepositus) and who belong to the line from which the said property came.
So, three transmissions are involved: (1) a first transmission by lucrative title
(inheritance or donation) from an ascendant or brother or sister to the deceased
descendant; (2) a posterior transmission, by operation of law (intestate succession or
legitime) from the deceased descendant (causante de la reserva) in favor of another
ascendant, the reservor or reservista, which two transmissions precede the
reservation, and (3) a third transmissions of the same property (in consequence of
the reservation) from the reservor to the reservees (reservatarios) or the relatives
within the third degree from the deceased descendant belonging to the line of the

first ascendant, brother or sister of the deceased descendant (6 Castan Tobeas.

Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9).
If there are only two transmissions there is no reserva. Thus, where one Bonifacia
Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the
death of Juan, those lands should be inherited by his half-sister, to the exclusion of
his maternal first cousins. The said lands are not reservable property within the
meaning of article 811 (Lacerna vs. Vda. de Corcino, 111 Phil. 872).
The persons involved in reserva troncal are (1) the ascendant or brother or sister
from whom the property was received by the descendant by lucrative or gratuitous
title, (2) the descendant orprepositus (propositus) who received the property, (3) the
reservor (reservista), the other ascendant who obtained the property from
the prepositus by operation of law and (4) the reservee (reservatario) who is within
the third degree from theprepositus and who belongs to the line (linea o tronco)from
which the property came and for whom the property should be reserved by the
reservor.
The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101
Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August
31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs.
Villamayor, 72 Phil. 392).
The rationale of reserva troncal is to avoid el peligro de que bienes poseidos
secularmente por una familia pasen bruscamente a titulo gratuito a manos
extraas por el azar de los enlaces y muertes prematuras, or impedir que, por un
azar de la vida, personas extraas a una familia puedan adquirir bienes que sin
aquel hubieran quedado en ella (6 Castan Tobenas, Derecho Civil, Part 1, 6th Ed.,
1980, p. 203; Padura vs. Baldovino, 104 Phil. 1065).
An illustration of reserva troncal is found in Edroso vs. Sablan, 25 Phil. 295. In
that case, Pedro Sablan inherited two parcels of land from his father Victoriano.
Pedro died in 1902, single and without issue. His mother, Marcelina Edroso,
inherited from him the two parcels of land.
It was held that the land was reservable property in the hands of Marcelina. The
reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro
Sablan, the prepositus.Marcelina could register the land under the Torrens system

in her name but the fact that the land was reservable property in favor of her two
brothers-in-law, should they survive her, should be noted in the title.
In another case, it appears that Maria Aglibot died intestate in 1906. Her onehalf share of a parcel of conjugal land was inherited by her daughter, Juliana
Maalac. When Juliana died intestate in 1920, said one-half share was inherited by
her father, Anacleto Maalac who owned the other one-half portion.
Anacieto died intestate in 1942, survived by his second wife and their six
children. It was held that the said one-half portion was reservable property in the
hands of Anacleto Maalac and, upon his death, should be inherited by Leona
Aglibot and Evarista Aglibot, sisters of Maria and maternal aunts of Juliana
Maalac, who belonged to the line from which said onehalf portion came (Aglibot vs.
Maalac, 114 Phil. 964).
Other illustrations of reserva tronvalare found in Florentino vs. Florentino, 40
Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and
Gutierrez vs. Halcita, 46 Phil. 551;Lunsod vs. Ortega, 46 Phil. 664; Dizon vs.
Galang, 48 Phil. 601, Riosa vs. Rocha,48 Phil. 737; Centeno vs. Centeno, 52 Phil.
322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil.
279; Fallorfina vs. Abille, CA 39 O.G. 1784.
The person from whom the degree should be reckoned is the descendant, or the
one at the end of the line from which the property came and upon whom the
property last revoked by descent. He is called the prepositus (Cabardo vs.
Villanueva. 44 Phil. 186, 190)
In the Cabardo case, one Cornelia Abordu inherited property from her mother,
Basilio Cabardo. When Cornelia died, her estate passed to her father, Lorenzo
Abordo. In his hands, the property was reservable property. Upon the death of
Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of
Cornelia, who was her nearest relative within the third degree.
First cousins of the prepositus are in the fourth degree and are not reservees.
They cannot even represent their parents because representation is confined to
relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480).

Within the third degree, the nearest relatives exclude the more remote subject to
the rule of representation. But the representative should be within the third degree
from the prepositus (Padura vs. Baldovino, 104 Phil. 1065).
Reserva troncal contemplates legitimate relationship. Illegitimate relationship
and relationship by affinity are excluded.
Gratuitous title or titulo lucrativorefers to a transmission wherein the recipient
gives nothing in return such as donation and succession (Cabardo vs. Villanueva, 44
Phil. 186, 189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 1951, p. 360).
The reserva creates two resolutory conditions, namely, (1) the death of the
ascendant obliged to reserve and (2) the survival, at the time of his death, of
relatives within the third degree belonging to the line from which the property came
(Sienes vs. Esparcia, 111 Phil. 349, 353).
The reservor has the legal title and dominion to the reservable property but
subject to the resolutory condition that such title is extinguished if the reservor
predeceased the reservee. The reservor is a usufructuary of the reservable property.
He may alienate it subject to the reservation. The transferee gets the revocable and
conditional ownership of the reservor. The transferees rights are revoked upon the
survival of the reservees at the time of the death of the reservor but become
indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111
Phil. 349, 353;Edroso vs. Sablan, 25 Phil. 295: Lunsod vs. Ortega, 46 Phil.
664; Florentino vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil.
279.) The reservors title has been compared with that of the vendee a retro in
a pacto de retro sale or to a fideicomiso conditional.
The reservors alienation of the reservable property is subject to a resolutory
condition, meaning that if at the time of the reservors death, there are reservees,
the transferee of the property should deliver it to the reservees. If there are no
reservees at the time of the reservors death, the transferees title would become
absolute. (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson,118 Phil. 944; Nono vs.
Nequia, 93 Phil. 120).
On the other hand, the reservee has only an inchoate, expectant or contingent
right. His expectant right would disappear if he predeceased the reservor. It would
become absolute should the reservor predecease the reservee.

The reservee cannot impugn any conveyance made by the reservor but he can
require that the reservable character of the property be recognized by the purchaser
(Riosa vs. Rocha, 48 Phil. 737;Edroso vs. Sablan, 25 Phil. 295, 312-3;Gueco vs.
Lacson, 118 Phil. 944).
There is a holding that the renunciation of the reservees right to the reservable
property is illegal for being a contract regarding future inheritance (Velayo
Bernardo vs. Siojo, 58 Phil. 89, 96).
And there is a dictum that the reservees right is a real right which he may
alienate and dispose of conditionally. The condition is that the alienation shall
transfer ownership to the vendee only if and when the reservee survives the
reservor (Sienes vs. Esparcia, 111 Phil. 349, 353).
The reservatario receives the property as a conditional heir of the descendant
(prepositus), said property merely reverting to the line of origin from which it had
temporarily and accidentally strayed during the reservistas lifetime. The authorities
are all agreed that there being reservatarios that survive thereservista, the latter
must be deemed to have enjoyed no more than a life interest in the reservable
property. (J. J.B.L. Reyes in Cano vs. Director of Lands, 105 Phil. 1, 5.)
Even during the reservistas lifetime, thereservatarios, who are the ultimate
acquirers of the property, can already assert the right to prevent the reservistafrom
doing anything that might frustrate their reversionary right, and, for this purpose,
they can compel the annotation of their right in the registry of property even while
the reservista is alive (Ley Hipotecaria de Ultramar, Arts. 168, 199;Edroso vs.
Sablan, 25 Phil. 295).
This right is incompatible with the mere expectancy that corresponds to the
natural heirs of the reservista. It is likewise clear that the reservable property is no
part of the estate of thereservista who may not dispose of them (it) by will, so long as
there are reservatarios existing (Arroyo vs. Gerona,58 Phil. 226, 237).
The latter, therefore, do not inherit from the reservista but from the
descendant prepositus, of whom thereservatarios are the heirs mortis causa,subject
to the condition that they must survive the reservista. (Sanchez Roman, Vol. VI,
Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited

by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil.
1065).
Hence,
upon
the reservistas death,
thereservatario nearest
to
the prepositusbecomes, automatically and by operation of law, the owner of the
reservable property. (Cano vs. Director of Lands,105 Phil. 1, 5.)
In the instant case, the properties in question were indubitably reservable
properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The
reservation became a certainty when at the time of her death the reservees or
relatives within the third degree of theprepositus Filomena Legarda were living or
they survived Mrs. Legarda.
So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could
convey the reservable properties by will or mortis causa to the reservees within
the third degree (her sixteen grandchildren) to the exclusion of the reservees in
the second degree, her three daughters and three sons.
As indicated at the outset, that issue is already res judicata or cosa juzgada.
We hold that Mrs. Legarda could not convey in her holographic will to her sixteen
grandchildren the reservable properties which she had inherited from her daughter
Filomena because the reservable properties did not form part of her estate (Cabardo
vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis
causa of the reservable properties as long as the reservees survived the reservor.
As repeatedly held in the Cano andPadura cases, the reservees inherit the
reservable properties from the prepositus,not from the reservor.
Article 891 clearly indicates that the reservable properties should be inherited by
all the nearest relatives within the third degree from the prepositus who in this case
are the six children of Mrs. Legarda. She could not select the reservees to whom the
reservable property should be given and deprive the other reservees of their share
therein.
To allow the reservor in this case to make a testamentary disposition of the
reservable properties in favor of the reservees in the third degree and, consequently,

to ignore the reservees in the second degree would be a glaring violation of article
891. That testamentary disposition cannot be allowed.
We have stated earlier that this case is governed by the doctrine of Florentino vs.
Florentino, 40 Phil. 480, a similar case, where it was ruled:
Reservable property left, through a will or otherwise, by the death of ascendant (reservista)
together with his own property in favor of another of his descendants as forced heir, forms
no part of the latters lawful inheritance nor of the legitime, for the reason that, as said
property continued to be reservable, the heir receiving the same as an inheritance from his
ascendant has the strict obligation of its delivery to the relatives, within the third degree, of
the predecessor in interest (prepositus), without prejudicing the right of the heir to an
aliquot part of the property, if he has at the same time the right of
a reservatario (reservee).

In the Florentino case, it appears that Apolonio Florentino II and his second wife
Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two
inherited properties from their father. Upon Apolonio IIIs death in 1891, his
properties were inherited by his mother, Severina, who died in 1908. In her will, she
instituted her daughter Mercedes as heiress to all her properties, including those
coming from her deceased husband through their son, Apolonio III.
The surviving children, begotten by Apolonio II with his first wife Antonia Faz de
Leon and the descendants of the deceased children of his first marriage, sued
Mercedes Florentino for the recovery of their share in the reservable properties,
which Severina de Leon had inherited from Apolonio III, which the latter had
inherited from his father Apolonio II and which Severina willed to her daughter
Mercedes.
Plaintiffs theory was that the said properties, as reservable properties, could not
be disposed of in Severinas will in favor of Mercedes only. That theory was
sustained by this Court.
It was held that the said properties, being reservable properties, did not form part
of Severinas estate and could not be inherited from her by her daughter Mercedes
alone.

As there were seven reservees, Mercedes was entitled, as a reservee, to oneseventh of the properties. The other six-sevenths portions were adjudicated to the
other six reservees.
Under the rule of stare decisis et non quieta movere, we are bound to follow in this
case the doctrine of the Florentinocase. That doctrine means that as long as during
the reservors lifetime and upon his death there are relatives within the third
degree of the prepositus, regardless of whether those reservees are common
descendants of the reservor and the ascendant from whom the property came, the
property retains its reservable character. The property should go to the nearest
reservees. The reservor cannot, by means of his will, choose the reservee to whom
the reservable property should be awarded.
The alleged opinion of Sanchez Roman that there is no reserva troncal when the
only relatives within the third degree are the common descendants of the
predeceased ascendant and the ascendant who would be obliged to reserve is
irrelevant and sans binding force in the light of the ruling in theFlorentino case.
It is contended by the appellees herein that the properties in question are not
reservable properties because only relatives within the third degree from the
paternal line have survived and that when Mrs. Legarda willed the said properties
to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda
and who belong to the paternal line, the reason for the reserva troncal has been
satisfied: to prevent persons outside a family from securing, by some special
accident of life, property that would otherwise have remained therein.
That same contention was advanced in the Florentino case where the reservor
willed the reservable properties to her daughter, a full-blood sister of
theprepositus and ignored the other six reservors, the relatives of the half-blood of
the prepositus.
In rejecting that contention, this Court held that the reservable property
bequeathed by the reservor to her daughter does not form part of the reservors
estate nor of the daughters estate but should be given to all the seven reservees or
nearest relatives of the prepositus within the third degree.
This Court noted that, while it is true that by giving the reservable property to
only one reservee it did not pass into the hands of strangers, nevertheless, it is

likewise true that the heiress of the reservor was only one of the reservees and there
is no reason founded upon law and justice why the other reservees should be deprived
of their shares in the reservable property (pp. 894-5).
Applying that doctrine to this case, it results that Mrs. Legarda could not dispose
of in her will the properties in question even if the disposition is in favor of the
relatives within the third degree from Filomena Legarda. The said properties, by
operation of Article 891, should go to Mrs. Legardas six children as reservees
within the second degree from Filomena Legarda.
It should be repeated that the reservees do not inherit from the reservor but from
the prepositus, of whom the reservees are the heirs mortis causasubject to the
condition that they must survive the reservor (Padura vs. Baldovino, L-11960,
December 27, 1958,104 Phil. 1065).
The trial court said that the disputed properties lost their reservable character
due to the non-existence of third-degree relatives of Filomena Legarda at the time of
the death of the reservor, Mrs. Legarda, belonging to the Legarda family, except
third-degree relatives who pertain to both the Legarda and Roces lines.
That holding is erroneous. The reservation could have been extinguished only by
the absence of reservees at the time of Mrs. Legardas death. Since at the time of
her death, there were (and still are) reservees belonging to the second and third
degrees, the disputed properties did not lose their reservable character. The
disposition of the said properties should be made in accordance with article 891 or
the rule on reserva troncal and not in accordance with the reservors holographic
will. The said properties did not form part of Mrs. Legardas estate. (Cano vs.
Director of Lands, 105 Phil. 1, 4).
WHEREFORE, the lower courts decision is reversed and set aside. It is hereby
adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her
daughter Filomena Legarda, with all the fruits and accessions thereof, are
reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro
and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L.
Valdes and Benito F. Legarda, who died in 1969 and 1973, respectively, should
pertain to their respective heirs. Costs against the private respondents.
SO ORDERED.

Barredo, Guerrero, Abad Santosand De Castro, JJ., concur.

Justice Concepcion Jr., is on leave. Justice Guerrero was designated to sit in
the Second Division.
Petition granted.
Notes.The requisite conditions for tax purposes before a court may issue an order of distribution of a
decedents estate are: (1) when the inheritance tax has been paid; (2) when sufficient bond is given to meet the
payment of the inheritance tax and all other obligations of the estate; or (3) when the payment of the said tax
and all other obligations has been provided for. (Vera vs. Navarro, 79 SCRA 408)
The cause of action of the reservee of a piece of property subject of reserva troncal does not arise until the
reservor dies (Chua vs. Court of First Instance, 78 SCRA 412)
For purposes of reserva troncal there is gratuitous transfer when the recipient does not give anything in
return and it matters not that the property is subject to prior charges, such as an order of the court imposing the
payment of a certain sum of money owned by the deceased. (Chua vs. Court of First Instance, 78 SCRA 412)
Plaintiffs cession of rights in favor of the legatees and heirs named in the will cut off whatever claims they
may have had to the properties of the estate for distribution (Corpus vs. Corpus, 7 SCRA 817)
A proceeding for the probate of a will is one in rem, such that with the corresponding publication of the
petition the courts jurisdiction extends to all persons interested in said will or in the settlement of the estate of
the deceased. (Abut vs. Abut, 45 SCRA 326)
Inability among the heirs to reach a novatory accord can not invalidate the original compromise among them
and any of the latter is justified in finally seeking a court order for the approval and enforcement of such
compromise. (De Borja vs. Vda. de Borja, 46 SCRA 577)
The better practice, however, for the heir who has not received his share, is to demand his share through a
proper motion in the same probate or administration proceedings it it had already been closed, and not through
an independent action, which would be tried by another court or Judge which may thus reverse a decision or
order of the probate or intestate court already final and executed and reshuffle properties long ago distributed
and disposed of. (Guilas vs. Judge of Court of First Instance, 43 SCRA 111; Macias vs. Uy Kim, 45 SCRA 251)
In reserva troncal the reservor has the legal title and dominion over the reservable property but subject to a
resolutory condition. (Sienes vs. Esparcia,1 SCRA 750).
When land is reservable property it is obligatory to reserve such property for the benefit of the real heir.
(Aglibot vs. Maalac, 4 SCRA 1030)
o0o

G.R. No. 83484. February 12, 1990.

CELEDONIA SOLIVIO, petitioner, vs.THE HONORABLE COURT OF APPEALS

and CONCORDIA JAVELLANA VILLANUEVA, respondents.
Special Proceedings; Settlement of Estate;Courts; Jurisdiction; Trial court has no
jurisdiction to entertain an action for partition and recovery of properties belonging to the
estate of a deceased person, while the probate proceedings for the settlement of said estate are
still pending in another branch of the same court.After a careful review of the records, we
find merit in the petitioners contention that the Regional Trial Court, Branch 26, lacked
jurisdiction to entertain Concordia Villanuevas action for partition and recovery of her
share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl. Proc. No.
2540) for the settlement of said estate are still pending in Branch 23 of the same court,
there being as yet no orders for the submission and approval of the administratrixs
inventory and accounting, distributing the residue of the estate to the heir, and terminating
the proceedings (p. 31, Record) x x x In the interest of orderly procedure and to avoid
confusing and conflicting dispositions of a decedents estate, a court should not interfere
with probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge
of the Court of First Instance of Pampanga, L-26695, January 31, 1972, 43 SCRA 111,
117, where a daughter filed a separate action to annul a project of partition executed
between her and her father in the proceedings for the settlement of the estate of her mother:
The probate court loses jurisdiction of an estate under administration only after the
payment of all the debts and the remaining estate delivered to the heirs entitled to receive
the same. The finality of the approval of the project of partition by itself alone does not
terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29,
1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the
estate has not been complied with, the probate proceedings cannot be deemed closed and
terminated (Siguiong v. Tecson, supra); because a judicial partition is not final and
conclusive and does not prevent the heirs from bringing an action to obtain his share,
provided the prescriptive period therefore has not elapsed (Mari v. Bonilla, 83 Phil.
137). The better practice, however, for the heir who has not received his share, is to demand
his share through a proper motion in the same probate or administration proceedings, or for
reopening of the probate or administrative proceedings if it had already been closed, and not
through an independent action, which would be tried by another court or Judge which may
thus reverse a decision or order of the probate or intestate court already final and executed
and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil.
730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082;

Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Italics
supplied)
Same; Same; Probate proceedings are proceedings in rem, publication of the notice of
the proceedings is constructive notice to the whole world.The probate proceedings are
proceedings in rem. Notice of the time and place of hearing of the petition is required to be
published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the
hearing of Celedonias original petition was published in the Visayan Tribune on April 25,
May 2 and 9, 1977 (Exh. 4, p. 197, Record). Similarly, notice of the hearing of her amended
petition of May 26, 1977 for the settlement of the estate was, by order of the court,
published in Bagong Kasanag (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182305, Record). The publication of the notice of the proceedings was constructive notice to the
whole world. Concordia was not deprived of her right to intervene in the proceedings for she
had actual, as well as constructive notice of the same.
Same; Same; Same; Annulment of judgment; Extrinsic fraud; Failure to disclose to the
adverse party, or to the court, matters which will defeat ones own claim or defense does not
constitute extrinsic fraud that will justify vacation of judgment.Celedonias allegation in
her petition that she was the sole heir of Esteban within the third degree on his mothers
side was not false. Moreover, it was made in good faith and in the honest belief that because
the properties of Esteban had come from his mother, not his father, she, as Estebans
nearest surviving relative on his mothers side, is the rightful heir to them. It would have
been self-defeating and inconsistent with her claim of sole heirship if she stated in her
petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic
fraud. Failure to disclose to the adversary, or to the court, matters which would defeat
ones own claim or defense is not such extrinsic fraud as will justify or require vacation of
the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank &
Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)
Wills and Succession; Reserva Troncal;Reserva troncal does not apply to property
inherited by a descendant from his ascendant.Clearly, the property of the deceased,
Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant,
but the descendant of his mother, Salustia Solivio, from whom he inherited the properties
in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his
aunt, Celedonia Solivio, who is his relative within the third degree on his mothers side. The
reserva troncal applies to properties inherited by an ascendant from a descendant who
inherited it from another ascendant or a brother or sister. It does not apply to property
inherited by a descendant from his ascendant, the reverse of the situation covered by Article
891.

Evidence; Judicial Admissions; Judicial admissions are conclusive and no evidence is

required to prove the same.However, inasmuch as Concordia had agreed to deliver the
estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de
Javellana (from whom the estate came), an agreement which she ratified and confirmed in
her Motion to Reopen and/or Reconsider Order dated April 3, 1978 which she filed in Spl.
Proceeding No. 2540: 4. That x x x prior to the filing of the petition they (petitioner
Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the
decedent a foundation, besides they have closely known each other due to their filiation to
the decedent and they have been visiting each others house which are not far away for (sic)
each other. (p. 234, Record; emphasis supplied) she is bound by that agreement. It is true
that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did
agree to place all of Estebans estate in the Salustia Solivio Vda. de Javellana Foundation
which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance
the education of indigent but deserving students as well. Her admission may not be taken
lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence
need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v.
Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R. 70091, Dec. 29, 1986, 146
SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).

PETITION for review of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Rex Suiza Castillon for petitioner.
Salas & Villareal for private respondent.
MEDIALDEA, J.:
This is a petition for review of the decision dated January 26, 1988 of the Court of
Appeals in CA-GR CV No. 09010(Concor-dia Villanueva v. Celedonia Solivio)
affirming the decision of the trial court in Civil Case No. 13207 for partition,
reconvey-ance of ownership and possession and damages, the dispositive portion of
which reads as follows:
WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant:
1. a)Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2)
shares: one-half for the plaintiff and one-half for defendant. From both shares shall

be equally deducted the expenses for the burial, mausoleum and related
expenditures. Against the share of defendants shall be charged the expenses for
scholarship, awards, donations and the Salustia Solivio Vda. de Javellana
Memorial Foundation;
2. b)Directing the defendant to submit an inventory of the entire estate property,
including but not limited to, specific items already mentioned in this decision and
to render an accounting of the property of the estate, within thirty (30) days from
receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff;
3. c)Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00
for and as attorneys fees plus costs.
SO ORDERED. (pp. 42-43, Rollo)

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of
the first post-war Filipino novel With-out Seeing the Dawn, who died a bachelor,
without descendants, ascendants, brothers, sisters, nephews or nieces. His only
surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the
spinster half-sister of his mother, Salus-tia Solivio; and (2) the private respondent,
Concordia Javel-lana-Villanueva, sister of his deceased father, Esteban Javel-lana,
Sr.
He was a posthumous child. His father died barely ten (10) months after his
marriage in December, 1916 to Salustia So-livio and four months before Esteban, Jr.
was born.
Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second
wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up
Esteban, Jr. Salustia brought to her marriage paraphernal properties (various
parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from
her mother, Gregoria Celo, Engracio Solivios first wife (p. 325, Record), but no
conjugal property was acquired during her short-lived marriage to Esteban, Sr.
On October 11, 1959, Salustia died, leaving all her properties to her only child,
Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and
her sister lived. In due time, the titles of all these properties were transferred in the
name of Esteban, Jr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt
Celedonia and some close friends his plan to place his estate in a foundation to
honor his mother and to help poor but deserving students obtain a college
education. Unfortunately, he died of a heart attack on February 26, 1977 without
having set up the foundation.
Two weeks after his funeral, Concordia and Celedonia talked about what to do
with Estebans properties. Celedonia told Concordia about Estebans desire to place
his estate in a foundation to be named after his mother, from whom his properties
came, for the purpose of helping indigent students in their schooling. Concordia
agreed to carry out the plan of the deceased. This fact was admitted by her in her
Motion to Reopen and/or Reconsider the Order dated April 3, 1978 which she filed
on July 27, 1978 in Special Proceeding No. 2540, where she stated:
4. That petitioner knew all along the narrated facts in the immediately preceding
paragraph [that herein movant is also the relative of the deceased within the third degree,
she being the younger sister of the late Esteban Javellana, father of the decedent herein],
because prior to the filing of the petition they (petitioner Celedonia Solivio and movant
Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides
they have closely known each other due to their filiation to the decedent and they have been
visiting each others house which are not far away for (sic) each other. (p. 234, Record;
italics supplied.)

Pursuant to their agreement that Celedonia would take care of the proceedings
leading to the formation of the foundation, Celedonia in good faith and upon the
advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her
appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh.
2). Later, she filed an amended petition (Exh. 5) praying that letters of
administration be issued to her; that she be declared sole heir of the deceased; and
that after payment of all claims and rendition of inventory and accounting, the
estate be adjudicated to her (p. 115, Rollo).
After due publication and hearing of her petition, as well as her amended
petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She
explained that this was done for three reasons: (1) because the properties of the
estate had come from her sister, Salustia Solivio; (2) that she is the decedents
nearest relative on his mothers side; and (3) with her as sole heir, the disposition of
the properties of the estate to fund the foundation would be facilitated.

On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her
the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the
taxes and other obligations of the deceased and proceeded to set up the SALUSTIA
SOLIVIO VDA. DE JAVELLANA FOUNDATION which she caused to be registered
in the Securities and Exchange Commission on July 17, 1981 under Reg. No.
0100027 (p. 98, Rollo).
Four months later, or on August 7, 1978, Concordia Javellana-Villanueva filed a
motion for reconsideration of the courts order declaring Celedonia as sole heir of
Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her
motion was denied by the court for tardiness (pp. 80-81, Record). Instead of
appealing the denial, Concordia filed on January 7, 1980 (or one year and two
months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26,
entitled Concordia Javellana-Villanueva v. Celedonia Solivio for partition, recovery
of possession, ownership and damages.
On September 3, 1984, the said trial court rendered judgment in Civil Case No.
13207, in favor of Concordia Javellana-Villanueva.
On Concordias motion, the trial court ordered the execution of its judgment
pending appeal and required Celedonia to submit an inventory and accounting of
the estate. In her motions for reconsideration of those orders, Celedonia averred
that the properties of the deceased had already been transferred to, and were in the
possession of, the Salustia Solivio Vda. de Javellana Foundation. The trial court
denied her motions for reconsideration.
In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA-GR
CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division,
rendered judgment affirming the decision of the trial court in toto. Hence, this
petition for review wherein she raised the following legal issues:
1. 1.whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No.
13207 for partition and recovery of Concordia Villanuevas share of the estate of
Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540)
were still pending in Branch 23 of the same court;
2. 2.whether Concordia Villanueva was prevented from intervening in Spl. Proc. No.
2540 through extrinsic fraud;

3. 3.whether the decedents properties were subject to reserva troncal in favor of

Celedonia, his relative within the third degree on his mothers side from whom he
had inherited them; and
4. 4.whether Concordia may recover her share of the estate after she had agreed to
place the same in the Salustia Solivio Vda. de Javellana Foundation, and
notwithstanding the fact that conformably with said agreement, the Foundation
has been formed and properties of the estate have already been transferred to it.

I. The question of jurisdiction

After a careful review of the records, we find merit in the petitioners contention
that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia
Villanuevas action for partition and recovery of her share of the estate of Esteban
Javellana, Jr. while the probate proceedings (Spl. Proc. No. 2540) for the settlement
of said estate are still pending in Branch 23 of the same court, there being as yet no
orders for the submission and approval of the administratrixs inventory and
accounting, distributing the residue of the estate to the heir, and terminating the
proceedings (p. 31, Record).
It is the order of distribution directing the delivery of the residue of the estate to
the persons entitled thereto that brings to a close the intestate proceedings, puts an
end to the administration and thus far relieves the administrator from his duties
(Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial
Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266).
The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the
sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the
proceedings. As a matter of fact, the last paragraph of the order directed the
administratrix to hurry up the settlement of the estate. The pertinent portions of
the order are quoted below:
2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole
Heir, dated March 7, 1978], it appears from the record that despite the notices posted and
the publication of these proceedings as required by law, no other heirs came out to interpose
any opposition to the instant proceeding. It further appears that herein Administratrix is
the only claimant-heir to the estate of the late Esteban Javellana who died on February 26,
1977.

During the hearing of the motion for declaration as heir on March 17, 1978, it was
established that the late Esteban Javellana died single, without any known issue, and
without any surviving parents. His nearest relative is the herein Administratrix, an elder
[sic] sister of his late mother who reared him and with whom he had always been living
with [sic] during his lifetime.
x x x

xxx

xxx

2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole
and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at
La Paz, Iloilo City.
The Administratrix is hereby instructed to hurry up with the settlement of this estate
so that it can be terminated. (pp. 14-16, Record)

In view of the pendency of the probate proceedings in Branch 11of the Court of First
Instance (now RTC, Branch 23), Concordias motion to set aside the order declaring
Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as coheir
and recover her share of the properties of the deceased, was properly filed by her in
Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate
the denial to the Court of Appeals for review on certiorari. However, instead of
availing of that remedy, she filed more than one year later, a separate action for the
same purpose in Branch 26 of the court. We hold that the separate action was
improperly filed for it is the probate court that has exclusive jurisdiction to make a
just and legal distribution of the estate.
The probate court, in the exercise of its jurisdiction to make distribution, has power to
determine the proportion or parts to which each distributee is entitled. x x x The power to
determine the legality or illegality of the testamentary provision is inherent in the
jurisdiction of the court making a just and legal distribution of the inheritance. x x x To
hold that a separate and independent action is necessary to that effect, would be contrary to
the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further,
expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388)
A judicial declaration that a certain person is the only heir of the decedent is exclusively
within the range of the administratrix proceedings and can not properly be made an
independent action. (Litam v. Espiritu, 100 Phil. 364)
A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil.
436)

In the interest of orderly procedure and to avoid confusing and conflicting

dispositions of a decedents estate, a court should not interfere with probate
proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the
Court of First Instance of Pampanga,L-26695, January 31, 1972, 43 SCRA 111, 117,
where a daughter filed a separate action to annul a project of partition executed
between her and her father in the proceedings for the settlement of the estate of her
mother:
The probate court loses jurisdiction of an estate under administration only after the
payment of all the debts and the remaining estate delivered to the heirs entitled to receive
the same. The finality of the approval of the project of partition by itself alone does not
terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29,
1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the
estate has not been complied with, the probate proceedings cannot be deemed closed and
terminated (Siguiong v. Tecson, supra); because a judicial partition is not final and
conclusive and does not prevent the heirs from bringing an action to obtain his share,
provided the prescriptive period therefore has not elapsed (Mari v. Bonilla, 83 Phil.
137).The better practice, however, for the heir who has not received his share, is to demand
his share through a proper motion in the same probate or administration proceedings, or for
reopening of the probate or administrative proceedings if it had already been closed, and not
through an independent action, which would be tried by another court or Judge which may
thus reverse a decision or order of the probate or intestate court already final and executed
and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil.
730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil.
1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Italics
supplied)

In Litam, et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special
proceedings for the settlement of the intestate estate of the deceased Rafael Litam,
the plaintiffs-appellants filed a civil action in which they claimed that they were the
children by a previous marriage of the deceased to a Chinese woman, hence, entitled
to inherit his one-half share of the conjugal properties acquired during his marriage
to Marcosa Rivera, the trial court in the civil case declared that the plaintiffsappellants were not children of the deceased, that the properties in question were
paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only
heir. On appeal to this Court, we ruled that such declarations (that Marcosa Rivera
was the only heir of the decedent) is improper, in Civil Case No. 2071, it being
within the exclusive competence of the court in Special Proceedings No. 1537, in

which it is not as yet, in issue, and, will not be, ordinarily, in issue until the
presentation of the project of partition.(p. 378).
However, in the Guilas case, supra, since the estate proceedings had been closed
and terminated for over three years, the action for annulment of the project of
partition was allowed to continue. Considering that in the instant case, the estate
proceedings are still pending, but nonetheless, Concordia had lost her right to have
herself declared as co-heir in said proceedings, We have opted likewise to proceed to
discuss the merits of her claim in the interest of justice.
The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207
setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the
ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of
Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and
requiring the administratrix, Celedonia, to submit an inventory and accounting of
the estate, were improper and officious, to say the least, for these matters lie within
the exclusive competence of the probate court.
II. The question of extrinsic fraud
Was Concordia prevented from intervening in the intestate proceedings by extrinsic
fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not
alleged in Concordias original complaint in Civil Case No. 13207. It was only in her
amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first
time.
Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the
prevailing party which prevented a fair submission of the controversy (Francisco v. David,
38 O.G. 714). A fraud which prevents a party from having a trial or presenting all of his
case to the court, or one which operates upon matters pertaining, not to the judgment itself,
but to the manner by which such judgment was procured so much so that there was no fair
submission of the controversy. For instance, if through fraudulent machination by one [his
adversary], a litigant was induced to withdraw his defense or was prevented from
presenting an available defense or cause of action in the case wherein the judgment was
obtained, such that the aggrieved party was deprived of his day in court through no fault of
his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui,
44623-R, July 31, 1971). (cited inPhilippine Law Dictionary, 1972 Ed. by Moreno; Varela v.
Villanueva, et al., 95 Phil. 248)

A judgment may be annulled on the ground of extrinsic or collateral fraud, as

distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by a
prevailing litigant outside the trial of a case against the defeated party, or his agents,
attorneys or witnesses, whereby said defeated party is prevented from presenting fully and
fairly his side of the case. x x x The overriding consideration is that the fraudulent scheme
of the prevailing litigant prevented a party from having his day in court or from presenting
his case. The fraud, therefore, is one that affects and goes into the jurisdiction of the court.
(Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v.
Ruiz, L-30694, October 31, 1969, 30 SCRA 318, 323)

The charge of extrinsic fraud is, however, unwarranted for the following reasons:
1. Concordia was not unaware of the special proceeding intended to be filed by
Celedonia. She admitted in her complaint that she and Celedonia had agreed that
the latter would initiate the necessary proceeding and pay the taxes and
obligations of the estate. Thus paragraph 6 of her complaint alleged:
6. x x x for the purpose of facilitating the settlement of the estate of the late Esteban
Javellana, Jr. at the lowest possible cost and the least effort, the plaintiff and the defendant
agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes
and other obligations, and to do everything else required by law, and thereafter, secure the
partition of the estate between her and the plaintiff, [although Celedonia denied that they
agreed to partition the estate, for their agreement was to place the estate in a foundation.]
(p. 2, Record; emphasis supplied)

Evidently, Concordia was not preventedfrom intervening in the proceedings. She

stayed away by choice. Besides, she knew that the estate came exclusively from
Estebans mother, Salustia Solivio, and she had agreed with Celedonia to place it in
a foundation as the deceased had planned to do.
2. The probate proceedings are proceedings in rem. Notice of the time and place
of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to
Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonias original petition
was published in the Visayan Tribune on April 25, May 2 and 9, 1977 (Exh. 4, p.
197, Record). Similarly, notice of the hearing of her amended petition of May 26,
1977 for the settlement of the estate was, by order of the court, published in
Bagong Kasanag (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305,
Record). The publication of the notice of the proceedings was constructive notice to
the whole world. Concordia was not deprived of her right to intervene in the

proceedings for she had actual, as well as constructive notice of the same. As
pointed out by the probate court in its order of October 27, 1978:
x x x. The move of Concordia Javellana, however, was filed about five months after
Celedonia Solivio was declared as the sole heir. x x x.
Considering that this proceeding is one in rem and had been duly published as required
by law, despite which the present movant only came to court now, then she is guilty of
laches for sleeping on her alleged right. (p. 22, Record)

The court noted that Concordias motion did not comply with the requisites of a
petition for relief from judgment nor a motion for new trial.
The rule is stated in 49 Corpus Juris Secundum 8030 as follows:
Where petition was sufficient to invoke statutory jurisdiction of probate court
andproceeding was in rem, no subsequent errors or irregularities are available on collateral
attack. (Bedwell v. Dean 132 So. 20)

Celedonias allegation in her petition that she was the sole heir of Esteban within
the third degree on his mothers side was not false. Moreover, it was made in good
faith and in the honest belief that because the properties of Esteban had come from
his mother, not his father, she, as Estebans nearest surviving relative on his
mothers side, is the rightful heir to them. It would have been self-defeating and
inconsistent with her claim of sole heirship if she stated in her petition that
Concordia was her co-heir. Her omission to so state did not constitute extrinsic
fraud.
Failure to disclose to the adversary, or to the court, matters which would defeat ones own
claim or defense is not such extrinsic fraud as will justify or require vacation of the
judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust
Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)

It should be remembered that a petition for administration of a decedents estate

may be filed by any interested person (Sec. 2, Rule 79, Rules of Court). The filing of
Celedonias petition did not preclude Concordia from filing her own.
III. On the question of reserva troncal

We find no merit in the petitioners argument that the estate of the deceased was
subject to reserva troncal and that it pertains to her as his only relative within the
third degree on his mothers side. Thereserva troncal provision of the Civil Code is
found in Article 891 which reads as follows:
ART. 891. The ascendant who inherits from his descendant any property which the latter
may have acquired by gratuitous title from another ascendant, or a brother or sister, is
obliged to reserve such property as he may have acquired by operation of law for the benefit
of relatives who are within the third degree and who belong to the line from which said
property came.

The persons involved in reserva troncalare:

1. 1.The person obliged to reserve is the reservor (reservista)the ascendant who
inherits by operation of law property from his descendants.
2. 2.The persons for whom the property is reserved are the reservees (reservatarios)
relatives within the third degree counted from the descendant (propositus), and
belonging to the line from which the property came.
3. 3.The propositusthe descendant who received by gratuitous title and died without
issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by
Padilla, Vol. II, 1956 Ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable
property, for Esteban, Jr. was not an ascendant, but the descendant of his mother,
Salustia Solivio, from whom he inherited the properties in question. Therefore, he
did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia
Solivio, who is his relative within the third degree on his mothers side. The reserva
troncal applies to properties inherited by an ascendant from a descendant who
inherited it from another ascendant or a brother or sister. It does not apply to
property inherited by a descendant from his ascendant, the reverse of the situation
covered by Article 891.
Since the deceased, Esteban Javellana, Jr., died without descendants,
ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or
nieces, what should apply in the distribution of his estate are Articles 1003 and
1009 of the Civil Code which provide:

ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving

spouse, the collateral relatives shall succeed to the entire estate of the deceased in
accordance with the following articles.
ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters,
the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.

Therefore, the Court of Appeals correctly held that:

Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the
third degree in the collateral line, each, therefore, shall succeed to the subject estate
without distinction of line or preference among them by reason of relationship by the whole
blood, and is entitled to one-half (1/2) share and share alike of the estate. (p. 57, Rollo)

IV. The question of Concordias one-half share

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to
the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from
whom the estate came), an agreement which she ratified and confirmed in her
Motion to Reopen and/or Reconsider Order dated April 3, 1978 which she filed in
Spl. Proceeding No. 2540:
4. That x x x prior to the filing of the petition they (petitioner Celedonia Solivio and movant
Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides
they have closely known each other due to their filiation to the decedent and they have been
visiting each others house which are not far away for (sic) each other. (p. 234, Record;
italics supplied)

she is bound by that agreement. It is true that by that agreement, she did not waive
her inheritance in favor of Celedonia, but she did agree to place all of Estebans
estate in the Salustia Solivio Vda. de Javellana Foundation which Esteban, Jr.,
during his lifetime, planned to set up to honor his mother and to finance the
education of indigent but deserving students as well.
Her admission may not be taken lightly as the lower court did. Being a judicial
admission, it is conclusive and no evidence need be presented to prove the

agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank,

L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968,24
SCRA 1018; People v. Encipido,G.R.70091, Dec. 29, 1986, 146 SCRA 478;
and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).
The admission was never withdrawn or impugned by Concordia who,
significantly, did not even testify in the case, although she could have done so by
deposition if she were supposedly indisposed to attend the trial. Only her husband,
Narciso, and son-in-law, Juanito Domin, actively participated in the trial. Her
husband confirmed the agreement between his wife and Celedonia, but he
endeavored to dilute it by alleging that his wife did not intend to give all, but only
one-half, of her share to the foundation (p. 323, Record).
The records show that the Salustia Solivio Vda. de Javellana Foundation was
established and duly registered in the Securities and Exchange Commission under
Reg. No. 0100027 for the following principal purposes:
1. 1.To provide for the establishment and/or setting up of scholarships for such
deserving students as the Board of Trustees of the Foundation may decide of at
least one scholar each to study at West Visayas State College, and the University of
the Philippines in the Visayas, both located in Iloilo City.
2. 2.To provide a scholarship for at least one scholar for St. Clements Redemptorist
Community for a deserving student who has the religious vocation to become a
priest.
3. 3.To foster, develop, and encourage activities that will promote the advancement
and enrichment of the various fields of educational endeavors, especially in literary
arts. Scholarships provided for by this foundation may be named after its
benevolent benefactors as a token of gratitude for their contributions.
4. 4.To direct or undertake surveys and studies in the community to determine
community needs and be able to alleviate partially or totally said needs.

5. 5.To maintain and provide the necessary activities for the proper care of the SolivioJavellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo City, and the
Javellana Memorial at the West Visayas State College, as a token of appreciation
for the contribution of the estate of the late Esteban S. Javellana which has made
this foundation possible. Also, in perpetuation of his Roman Catholic beliefs and

those of his mother, Gregorian masses or their equivalents will be offered every
February and October, and Requiem masses every February 25th and October
11th, their death anniversaries, as part of this provision.
1. 6.To receive gifts, legacies, donations, contributions, endowments and financial aids
or loans from whatever source, to invest and reinvest the funds, collect the income
thereof and pay or apply only the income or such part thereof as shall be
determined by the Trustees for such endeavors as may be necessary to carry out
the objectives of the Foundation.
2. 7.To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge,
exchange, sell, transfer, or otherwise, invest, trade, or deal, in any manner
permitted by law, in real and personal property of every kind and description or any
interest herein.
3. 8.To do and perform all acts and things necessary, suitable or proper for the
accomplishments of any of the purposes herein enumerated or which shall at any
time appear conducive to the protection or benefit of the corporation, including the
exercise of the powers, authorities and attributes concerned upon the corporation
organized under the laws of the Philippines in general, and upon domestic
corporation of like nature in particular. (pp. 9-10, Rollo)

As alleged without contradiction in the petition for review:

The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana
scholars graduated in 1986, one (1) from UPV graduated Cum Laude and two (2) from WVSU
graduated with honors; one was a Cum Laude and the other was a recipient of Lagos Lopez award
for teaching for being the most outstanding student teacher.
The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of
which was donated by the Foundation. The School has been selected as the Pilot Barangay High
School for Region VI.
The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at
St. Francis Xavier Major Regional Seminary at Davao City. The Foundation likewise is a member of the
Redemptorist Association that gives yearly donations to help poor students who want to become Redemptorist
priests or brothers. It gives yearly awards for Creative writing known as the Esteban Javellana Award.
Further, the Foundation had constructed the Esteban S. Javellana Multipurpose Center at the West
Visayas State University for teachers and students use, and has likewise contributed to religious, civic and
cultural fund-raising drives, amongst others. (p. 10, Rollo)

Having agreed to contribute her share of the decedents estate to the Foundation, Concordia is
obligated to honor her commitment as Celedonia has honored hers.
WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of
Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban
Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between
her and her coheir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the
Salustia Solivio Vda. de Javallana Foundation, of which both the petitioner and the private
respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to
constitute the Board of Trustees of the Foundation which shall administer the same for the purposes
set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate
court an inventory and accounting of the estate of the deceased preparatory to terminating the
proceedings therein.
SO ORDERED.
Narvasa, Cruz, Gancayco andGrio-Aquino, JJ., concur.
Petition granted; decision set aside.
Note.Fraud is regarded as extrinsic or collateral where it has prevented a party from hearing a
trial or from presenting all his case to the court. (Asian Surety and Insurance Co., Inc. vs. sland
Steel, Inc., 118 SCRA 233.)

[No. L-10701. January 16, 1959]

MARIA CANO, applicant and appellee,vs. DIRECTOR OF LANDS, EUSTAQUIA
GUERRERO, ET AL., oppositors and appellants. JOSE FERNANDEZ, ET AL.,
oppositors and appellants.
1. 1.SUCCESSION; RESERVA
TRONCAL; RECORD
RESERVA;DEATH
OF
RESERVISTA;ISSUANCE OF CERTIFICATE OF TlTLE TO RESERVEE.Once
an original certificate of title by virtue of the final decree of the land court was duly
issued in the name of thereservista, subject to reserva, troncal,and subsequently the
latter died, the registration court, in view of the said recorded reserva has
authority under Sec. 112 of Act 496 to order thereservatario; for the reason that the
death of the reservista vested the ownership of the property in the solereservatario
troncal.

1. 2.ID.; ID.; ID.; ID.; ID.; EXCEPTION.Where, however, the registration decree
merely specifies the reservable character of the property, without determining the
identity of thereservatario (as in the case of Director of Lands vs. Aguas, 63 Phil.,
279) or where several reservatories dispute the property among themselves, further
proceedings would be unavoidable.
1. 3.ID.; ID.; ID.; REQUISITES TO VEST TITLE IN RESERVE.The only requisites
for the passing of the title from the reservista to the reservee are (1) the death of
the reservista; and (2) the fact that the reservatario has survived the reservista.
1. 4.ID.; ID.; RESERVATION NOT RESERVISTA'S SUCCESSOR MORTIS CAUSA.
The reservatario is not the reservista's successor mortis causa nor is the reservable
property part of the reservista's estate; thereservatario receives the property as a
conditional heir of the descendant(prepositus), the property merely reverting to the
line of origin from which it had temporarily and accidentally strayed during
thereservista's lifetime. The authorities are all agreed that there
beingreservatarios that survive thereservista, the latter must be deemed to have
enjoyed no more than a life interest In the reservable property.
1. 5.ID.; ID.; DEATH

OF

RESERVISTA;RESERVATARIO

AUTOMATICALLY

BECOMES OWNER OF RESERVABLE PROPERTY.Upon the death of

the reservatario nearest to the prepositus becomes,automatically and by operation
of law,the owner of the reservable property.
1. 6.ID.; ID.; RESERVABLE PROPERTY CANNOT BE TRANSMITTED MORTIS
CAUSA BY RESERVISTA.The reservable property cannot betransmitted by a
reservista to her or his own successors mortis causa so long as
a reservatario, within the third degree from the prepositus and belonging to the line
whence the property came, is in existence when the reservista dies.

APPEAL from an order of the Court of First Instance of Sorsogon. Torres, J.

The facts are stated in the opinion of the Court.
Ramon C. Fernandez for appellants.
Jose B. Dealca for appellee.
REYES, J. B. L., J.:

In an amended decision dated October 9, 1951, issued in Land Registration Case

No. 12, G. L. R. O. Rec. No. 2835, the Court of First Instance of Sorsogon decreed
the registration of Lots Nos. 1798 and 1799 of the Juban (Sorsogon) Cadastre, under
the following terms and conditions:
"In view of the foregoing, and it appearing that the notices have been duly published and
posted as required by law, and that the title of the applicant to the above-mentioned two
parcels of land is registrable in law, it is hereby adjudged and decreed, and with
reaffirmation of the order of general default, that the two parcels of land described in plan
SWO-24152, known as Lots Nos. 1798 and 1799 of the Cadastral Survey of Juban, with
their improvements, be registered in the name of Maria Cano, Filipina, 71 years of age,
widow and resident of Juban, province of Sorsogon, with the understanding that Lot No.
1799 shall be subject to the right of reservation in favor of Eustaquia Guerrero pursuant to
Article 891 of the Civil Code. After this decision shall have become final for lack of appeal
therefrom within the 30-day period from its promulgation, let the corresponding decree
issue.
So ordered." (Rec. App. pp. 18-19)

The decision having become final, the decree and the Certificate of Title (No. 020) were issued in the name of Maria Cano, subject to reserva troncal in favor of
Eustaquia
Guerrero.
In
October
1955,
counsel
for
the
reservee (reservatorio)Guerrero filed a motion with the Cadastral Court, alleging
the death of the original registered owner andreservista, Maria Cano, on September
8, 1955, and praying that the original Certificate of Title be ordered cancelled and a
new one issued in favor of movant Eustaquia Guerrero; and that the Sheriff be
ordered to place her in possession of the property. The motion was opposed by Jose
and Teotimo Fernandez, sons of thereservista Maria Cano, who contended that the
application and operation of thereserva troncal should be ventilated in an ordinary
contentious proceeding, and that the Registration Court did not have jurisdiction to
grant the motion.
In view of the recorded reserva in favor of the appellee, as expressly noted in the
final decree of registration, the lower court granted the petition for the issuance of a
new certificate, for the reason that the death of the reservistavested the ownership
of the property in the petitioner as the sole reservatario troncal.

The oppositors, heirs of the reservistaMaria Cano, duly appealed from the order,
insisting that the ownership of thereservatario can not be decreed in a mere
proceeding under sec. 112 of Act 496, but requires a judicial administration
proceedings, wherein the rights of appellee, as the reservatario entitled to the
reservable property, are to be declared. In this connection, appellants argue that the
reversion in favor of thereservatario requires the declaration of the existence of the
following facts:
1. "(1)The property was received by a descendant by gratuitous title from an ascendant
or from a brother or sister;
2. (2)Said descendant dies without issue;

3. (3)The property is inherited by another ascendant by operation of law; and

4. (4)The existence of relatives within the third degree belonging to the line from which
said property came." (Appellants' Brief, p. 8)

We find the appeal untenable. The requisites enumerated by appellants have

already been declared to exist by the decree of registration wherein the rights of the
appellee as reservatario troncal were expressly recognized:
"From the above-quoted agreed stipulation of facts, it is evident that Lot No. 1799 was
acquired by the applicant Maria Cano by inheritance from her deceased daughter, Lourdes
Guerrero who, in turn, inherited the same from her father Evaristo Guerrero and, hence,
falls squarely under the provisions of Article 891 of the Civil Code; and that each and
everyone of the private oppositors are within the third degree of consanguinity of the
decedent Evaristo Guererro, and who belonging to the same line from which the property
came.
It appears, however, from the agreed stipulation of facts that with the exception of
Eustaquia Guerrero, who is the only living daughter of the decedent Evaristo Guerrero, by
his former marriage, all the other oppositors are grandchildren of the said Evaristo
Guerrero by his former marriages. Eustaquia Guerrero, being the nearest of kin, excludes
all the other private oppositors, whose degree of relationship to the decedent is remoter
(Article 962, Civil Code; Director of Lands vs. Aguas, 62 Phil., 279)." (Rec. App. pp. 16-17)

This decree having become final, all persons (appellees included) are barred thereby
from contesting the existence of the constituent elements of the reserva.The only

requisites for the passing of the title from the reservista to the appellee are: (1) the
death of the reservista; and (2) the fact that the reservatario has survived
the reservista. Both facts are admitted, and their existence is nowhere questioned.
The contention that an intestacy proceeding is still necessary rests upon the
assumption that the reservatario will succeed in, or inherit, the reservable property
from
the reservista. This
is
not
true.
The reservatario is
not
thereservista's successor mortis causa nor is the reservable property part of
thereservista's estate; the reservatario receives the property as a conditional heir of
the descendant(prepositus), said property merely reverting to the line of origin from
which it had temporarily and accidentally strayed during the reservista's lifetime.
The authorities are all agreed that there being reservatarios that survive
thereservista, the latter must be deemed to have enjoyed no more than a life interest
in the reservable property,
It is a consequence of these principles that upon the death of
the reservista, thereservatario nearest to the prepositus(the appellee in this case)
becomes,automatically and by operation of law,the owner of the reservable property.
As already stated, that property is no part of the estate of the reservista, and does
not even answer for the debts of the latter. Hence, its acquisition by
the reservatariomay be entered in the property records without necessity of estate
proceedings, since the 'basic requisites therefor appear of record. It is equally well
settled that the reservable property can not be transmitted by a reservista to her or
his own successors mortis causa, (like appellants herein) so long as
areservatorio within the third degree from the prepositus and belonging to the line
whence the property came, is in existence when the reservista dies.
Of course, where the registration decree merely specifies the reservable character
of the property, without determining the identity of thereservatario (as in the case
of Director of Lands vs. Aguas, 63 Phil., 279) or where several reservatarios dispute
the property among themselves, further proceedings would be unavoidable. But this
is not the case. The rights of the reservatariaEustaquia Guerrero have been
expressly recognized, and it is nowhere claimed that there are other reservatarios of
equal or nearer degree. It is thus apparent that the heirs of the reservistaare merely
endeavoring to prolong their enjoyment of the reservable property to the detriment
of the party lawfully entitled thereto.

We find no error in the order appeal from and therefore, the same is affirmed with
costs against appellants in both instances. So ordered.
Pars,
C.
J., Bengzon, Padilla,Montemayor, Bautista Angelo, Labrador,Concepcin and Enden
cia JJ., concur.
Order affirmed.
_______________

No. L-29901. August 31, 1977.

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA,

petitioners, vs. THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL,
BRANCH V and SUSANA DE LA TORRE, in her capacity as Administratrix of the
Intestate Estate of Consolacion de la Torre, respondents.
Civil law; Succession; Settlement of estate;Requisites for reserva troncal to arise.
Pursuant to the foregoing provision, in order that property may be impressed with a
reservable character the following requisites must exist, to wit: (1) that the property was
acquired by a descendant from an ascendant or from a brother or sister by gratuitous title;
(2) that said descendant died without an issue; (3) that the property is inherited by another
ascendant by operation of law; and (4) that there are relatives within the third degree

belonging to the line from which said property came. In the case before Us, all of the
foregoing requisites are present. Thus, as borne out by the records, Juanito Frias Chua of
the second marriage died intestate in 1952; he died without leaving any issue; his proindiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre by
operation of law. When Consolacion de la Torre, died, Juanito Frias Chua who died
intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and
Dominador Chua and Remedios Chua, the supposed legitimate children of the deceased
Lorenzo Frias Chua, who are the petitioners herein.
Same; Same; Same; For purposes of reserva troncal, there is a gratuitous transfer
when the recipient does not give anything in return and it matters not that the property is
subject to prior charges, such as an order of the court imposing the payment of a certain sum
owed by the deceased.As explained by Manresa which this Court quoted with approval in
Cabardo v. Villanueva, 44 Phil. 186, The transmission is gratuitous or by gratuitous title
when the recipient does not give anything in return. It matters not whether the property
transmitted be or be not subject to any prior charges; what is essential is that the
transmission be made gratuitously, or by an act of mere liberality of the person making it,
without imposing any obligation on the part of the recipient; and that the person receiving
the property gives or does nothing in return. x x x. It is true that there is the order (Exh.
D) of the probate Court in Intestate Proceeding No. 4816 which states in express terms x
x x. But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20
is imposed upon Consolacion de la Torre and Juanito Frias Chua not personally by the
deceased Jose Frias Chua in his last will and testament but by an order of the court in the
Testate Proceeding No. 4816 dated January 15, 1931. As long as the transmission of the
property to the heirs is free from any condition imposed by the deceased himself and the
property is given out of pure generosity, it-is gratuitous. It does not matter if later the court
orders one of the heirs, in this case Juanito Frias Chua, to pay the Standard Oil Co. of New
York the amount of P3,971.20. This does not change the gratuitous nature of the
transmission of the property to him.
Same; Same; Same; The fact that the decedents last will and testament was never
probated may not be a bar to transmission of the estate where a partition agreement was
entered into which was based on the will itself.It is easy to deduce that if the Last Will
and Testament has in fact been probated there would have been no need for the
testamentary heirs to prepare a project of partition among themselves. The very will itself
could be made the basis for the adjudication of the estate as in fact they did in their project
of partition with Juanito Frias Chua getting one-half of Lot 399 by inheritance as a son of
the deceased Jose Frias Chua by the latters second marriage.

Same; Same; Same; Prescription; The cause of action of the reservees of a piece of
property subject to reserva troncal does not arise until the reservor dies. It must be
remembered that the petitioners herein are claiming as reservees of the property in
question and their cause of action as reservees did not arise until the time the reservor,
Consolation de la Torre, died in March 1966. When the petitioners therefore filed their
complaint to recover the one-half (1/2) portion of Lot 399, they were very much in time to do
so.

PETITION for review of the decision of the Court of First Instance of Negros
Occidental. Fernandez, J.
The facts are stated in the opinion of the Court.
Dominador G. Abaria andPrimitivo Blanca for private respondent.
Rodrigo O. Delfinado for petitioners.
MARTIN, J.:
Petition for review of the decision of the respondent Court which dismissed the
complaint of petitioners in Civil Case No. 7839-A, entitled Ignacio Frias Chua, et
al. vs. Susana de la Torre, Administratrix of the Intestate Estate of Consolacion de
la Torre.
It appears that in the first marriage of Jose Frias Chua with Patricia S.
Militaralias Sy Quio, he sired three children, namely: Ignacio, Lorenzo and Manuel,
all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua
contracted a second marriage with Consolacion de la Torre with whom he had a
child by the name of Juanito Frias Chua. Manuel Frias Chua died without leaving
any issue. Then in 1929, Jose Frias Chua died intestate leaving his widow
Consolacion de la Torre and his son Juanito Frias Chua of the second marriage and
sons Ignacio Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate
Proceeding No. 4816, the lower court issued an order dated January 15,
1931 adjudicating, among others, the one-half (1/2) portion of Lot No. 399 and the
sum of P8,000.00 in favor of Jose Frias Chuas widow, Consolacion de la Torre, the
other half of Lot No. 399 in favor of Juanito Frias Chua, his son in the second
marriage; P3,000.00 in favor of Lorenzo Frias Chua; and P1,550.00 in favor of
Ignacio Frias, Chua, his sons of the first marriage. By virtue of said adjudication,
1

Transfer Certificate of Title No. TR-980 (14483) dated April 28, 1932 was issued by
the Register of Deeds in the names of Consolacion de la Torre and Juanito Frias
Chua as owners pro-indiviso of Lot No. 399.
2

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate
without any issue. After his death, his mother Consolacion de la Torre succeeded to
his pro-indivisio share of Lot No. 399. In a weeks time or on March 6, 1952,
Consolacion de la Torre executed a declaration of heirship adjudicating in her favor
the pro-indiviso share of her son Juanito as a result of which Transfer Certificate of
Title No. 31796 covering the whole Lot No. 399 was issued in her name. Then on
March 5, 1966, Consolacion de la Torre died intestate leaving no direct heir either in
the descending or ascending line except her brother and sisters.
In the Intestate Estate of Consolacion de la Torre, docketed as Sp. Proc. No.
7839-A, the petitioners herein, Ignacio Frias Chua, of the first marriage and
Dominador and Remedios Chua, the supposed legitimate children of the deceased
Lorenzo Frias Chua, also of the first marriage filed the complaint
a quo (subsequently segregated as a distinct suit and docketed as Civil Case No.
7889-A) on May 11, 1966 before the respondent Court of First Instance of Negros
Occidental, Branch V, praying that the one-half (1/2) portion of Lot No. 399 which
formerly belonged to Juanito Frias Chua but which passed to Consolacion de la
Torre upon the latters death, be declared as a reservable property for the reason
that the lot in question was subject to reserva troncal pursuant to Article 981 of the
New Civil Code. Private respondent as administratrix of the estate of Consolacion
de la Torre and the heirs of the latter traversed individually the complaint of
petitioners.
3

On July 29, 1968, the respondent Court rendered a decision dismissing the
complaint of petitioners. Hence this instant petition.
The pertinent provision on reserva troncal under the New Civil Code provides:
ART. 891. The ascendant who inherits from his descendant any property which the latter
may have acquired by gratuitous title from another ascendant, or a brother or sister, is
obliged to reserve such property as he may have acquired by operation of law for the benefit
of relatives who are within the third degree and belong to the line from which said property
came.

Pursuant to the foregoing provision, in order that a property may be impressed with
a reservable character the following requisites must exist, to wit: (1) that the
property was acquired by a descendant from an ascendant or from a brother or
sister by gratuitous title; (2) that said descendant died without an issue: (3) that the
property is inherited by another ascendant by operation of law; and (4) that there
are relatives within the third degree belonging to the line from which said property
came. In the case before Us, all of the foregoing requisites are present. Thus, as
borne out by the records, Juanito Frias Chua of the second marriage died intestate
in 1952; he died without leaving any issue; his pro-indiviso of 1/2 share of Lot No.
399 was acquired by his mother, Consolacion de la Torre by operation of law. When
Consolacion de la Torre died, Juanito Frias Chua who died intestate had relatives
within the third degree. These relatives are Ignacio Frias Chua and Dominador
Chua and Remedios Chua, the supposed legitimate children of the deceased Lorenzo
Frias Chua, who are the petitioners herein.
5

The crux of the problem in instant petition is focused on the first requisite
ofreserva troncalwhether the property in question was acquired by Juanito Frias
Chua from his father, Jose Frias Chua, gratuitously or not. In resolving this point
the respondent Court said:
It appears from Exh. 3, which is part of Exh. D, that the property in question, was not
acquired by Consolacion de la Torre and Juanito Frias Chua gratuitously but for a
consideration, namely, that the legatees wore to pay the interest and cost and other fees
resulting from Civil Case No. 5300 of this Court. As such it is undeniable that the lot in
question is not subject to a reserva troncal,under Art 891 of the New Civil Code, and as
such the plaintiffs complaint must fail.

We are not prepared to sustain the respondent Courts conclusion that the lot in
question is not subject to a reserva troncal under Art. 891 of the New Civil Code. It
is, As explained by Manresa which this Court quoted with approval in Cabardo v.
Villanueva, 44 Phil. 186, The transmission is gratuitous or by gratuitous title when
the recipient does not give anything in return. It matters not whether the property
transmitted be or be not subject to any prior charges; what is essential is that the
transmission be made gratuitously, or by an act of mere liberality of the person
making it, without imposing any obligation on the part of the recipient; and that the
person receiving the property gives or does nothing in return; or, as ably put by an
eminent Filipino commentator, the essential thing is that the person who
6

transmits it does so gratuitously, from pure generosity, without requiring from the
transferee any prestation. It is evident from the record that the transmission of the
property in question to Juanito Frias Chua of the second marriage upon the death
of his father Jose Frias Chua was by means of a hereditary succession and therefore
gratuitous. It is true that there is the order (Exh. D) of the probate Court in
Intestate Proceeding No. 4816 which states in express terms:
2.Se adjudicada por el presente a favor de Consolation de la Torre, viuda, mayor de edad,
y de su hijo, Juanito Frias Chua, menor de edad, todos residentes de San Enrique, Negros
Occidental, I.F., como herederos del finado Jose Frias Chua Choo, estas propiadades:
14483
La parcela de terreno conocida por Lote No. 399 del Catastro de la Carlota, Negros
Occidental, de 191.954 metros cuadrados y cubierto por el Certificado de Titulo No. 11759,
en partes equates pro-indiviso; por con la obligation de pagar a las Standard Oil Co. of New
York la d-euda de P3,971.20, sus intereses, costas y demos gastos resultantes del asunto civil
No. 5800 de este Juzgado.

But the obligation of paying the Standard Oil Co. of New York the amount of
P3,971.20 is imposed upon Consolation de la Torre and Juanito Frias Chua not
personally by the deceased Jose Frias Chua in his last will and testament but by an
order of the court in the Testate Proceeding No. 4816 dated January 15, 1931. As
long as the transmission of the property to the heirs is free from any condition
imposed by the deceased himself and the property is given out of pure generosity, it
is gratuitous. It does not matter if later the court orders one of the heirs, in this case
Juanito Frias Chua, to pay the Standard Oil Co. of New York the amount of
P3,971.20 This does not change the gratuitous nature of the transmission of the
property to him. As far as the deceased Jose Frias Chua is concerned the
transmission of the property to his heirs is gratuitous. This being the case the lot in
question is subject to reserva troncal under Art. 891 of the New Civil Code.
It is contended that the distribution of the shares of the estate of Jose Frias Chua
to the respondent heirs or legatees was agreed upon by the heirs in their project of
partition based on the last will and testament of Jose Frias Chua. But petitioners
claim that the supposed Last Will and Testament of Jose Frias Chua was never
probated. The fact that the will was not probated was admitted in paragraph 6 of
the respondents answer. There is nothing mentioned in the decision of the trial
7

court in Civil Case No. 7839A which is the subject of the present appeal nor in the
order of January 15, 1931 of the trial court in the Testate Estate Proceeding No.
4816 nor in the private respondents brief, that the Last Will and Testament of Jose
Frias Chua has ever been probated. With the foregoing, it is easy to deduce that if
the Last Will and Testament has in fact been probated there would have been no
need for the testamentary heirs to prepare a project of partition among themselves.
The very will itself could be made the basis for the adjudication of the estate as in
fact they did in their project of partition with Juanito Frias Chua getting one-half of
Lot 399 by inheritance as a son of the deceased Jose Frias Chua by the latters
second marriage.
According to the records, Juanito Frias Chua died on February 27, 1952 without
any issue. After his death his mother Consolacion de la Torre succeeded to his onehalf pro-indiviso share of Lot 399. This was, however, subject to the condition that
the property was reservable in character under Art. 891 of the Civil Code in favor of
relatives within the third degree of Jose Frias Chua from whom the property came.
These relatives are the petitioners herein.
It is claimed that the complaint of petitioners to recover the one-half portion of
Lot 399 which originally belonged to Juanito Frias Chua has already prescribed
when it was filed on May 11, 1966. We do not believe so. It must be remembered
that the petitioners herein are claiming as reservees of the property in question and
their cause of action as reservees did not arise until the time the reservor,
Consolacion de la Torre, died in March 1966. When the petitioners therefore filed
their complaint to recover the one-half (1/2) portion of Lot 399, they were very much
in time to do so.
IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside.
The petitioners Ignacio Frias Chua, Dominador Chua and Remedios Chua are
declared owners of 1/2 undivided portion of Lot 399; and the Register of Deeds of
Negros Occidental is hereby ordered to cancel. Transfer Certificate of Title No.
31796 covering Lot No. 399 issued in the name of Consolacion de la Torre and to
issue a new Certificate of Title in the names of Consolacion de la Torre, 1/2
undivided portion; Ignacio Frias Chua, 1/4 undivided portion; and Dominador Chua
and Remedios Chua, 1/4 undivided portion, of said lot. Without pronouncement as
to costs.

SO ORDERED.
Teehankee (Chairman), Makasiar,Muoz-Palma, Fernandez and Guerrero,
JJ., concur.
Decision set aside.
Notes.The better practice for the heir who has not received his share is to
demand his share through a proper motion in the same probate or administration
proceedings, or for reopening of the probate or administrative proceedings if it had
already been closed, and not through an independent action, which would be tried
by another court or Judge which may thus reverse a decision or order of the probate
court or intestate court already final and executed and reshuffle properties long ago
distributed and disposed of. (Guilas vs. Judge of CFI, 43 SCRA 111; Macias vs. Uy
Kim, 45 SCRA 251).
Foreign laws may not be taken judicial notice of and have to be proven like any
other fact in dispute between the parties in any proceedings with the rare exception
in instances when the said laws are already within the actual knowledge of the
court, such as when they are well and generally known or they have been actually
ruled upon in other cases before it and none of the parties concerned claim
otherwise. (Philippine Commercial and Industrial Bank vs. Escolin, 56 SCRA 266).
In an intestate succession, a grandniece of the deceased cannot participate with a
niece in the inheritance, because the latter being a nearer relative, the more distant
grandniece is excluded. Such being the case, the partition is void with respect to the
grandniece. (De los Santos vs. De la Cruz, 37 SCRA 555).
o0o

G.R. No. 176422.March 20, 2013.*

MARIA MENDOZA, in her own capacity and as Attorney-in-fact of
DEOGRACIAS,
MENDOZA,

MARCELA,

REMEDIOS

DIONISIA,

MONTILLA,

ADORACION,

FELY

all

surnamed

BAUTISTA,

JULIANA

GUILALAS and ELVIRA MENDOZA, petitioners, vs.JULIA POLICARPIO

DELOS SANTOS, substituted by her heirs, CARMEN P. DELOS SANTOS,

ROSA BUENAVENTURA, ZENAIDA P. DELOS SANTOS VDA. DE MATEO,

LEONILA P. DELOS SANTOS, ELVIRA P. DELOS SANTOS VDA. DE JOSE,
TERESITA

P.

DELOS

SANTOS-CABUHAT,

MERCEDITA

P.

DELOS

SANTOS, LYDIA P. DELOS SANTOS VDA. DE HILARIO, PERFECTO P.

DELOS SANTOS, JR., and CECILIA M. MENDOZA, respondents.

Remedial Law; Civil Procedure; Appeals; Petition for Review on Certiorari; The general
rule in this regard is that a petition for review on certiorari under Rule 45 of the Rules of
Court should raise only questions of law. There are, however, admitted exceptions to this rule,
one of which is when the Court of Appeals findings are contrary to those of the trial court.
This petition is one for review on certiorari under Rule 45 of the Rules of Court. The general
rule in this regard is that it should raise only questions of law. There are, however, admitted
exceptions to this rule, one of which is when the CAs findings are contrary to those of the
trial court. This being the case in the petition at hand, the Court must now look into the
differing findings and conclusion of the RTC and the CA on the two issues that ariseone,
whether the properties in dispute are reservable properties and two, whether petitioners
are entitled to a reservation of these properties.
Civil Law; Property; Succession; Reserva Troncal; There are three (3) lines of
transmission in reserva troncal. The first transmission is by gratuitous title, whether by
inheritance or donation, from an ascendant/brother/sister to a descendant called the
prepositus. The second transmission is by operation of law from the prepositus to the other
ascendant or reservor, also called the reservista. The third and last transmission is from the
reservista to the reservees or reservatarios who must be relatives within the third degree from

which the property came.The principle of reserva troncal is provided in Article 891 of the
Civil Code: Art.891. The ascendant who inherits from his descendant any property which
the latter may have acquired by gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property as he may have acquired by operation of law for
the benefit of relatives who are within the third degree and belong to the line
from which said property came.(Emphasis ours) There are three (3) lines of
transmission in reserva troncal. The first transmission is by gratuitous title, whether by
inheritance or donation, from an ascendant/brother/sister to a descendant called
the prepositus. The second transmission is by operation of law from theprepositus to the
other ascendant or reservor, also called the reservista. The third and last transmission is
from the reservista to the reservees or reservatarios who must be relatives within the third
degree from which the property came.
Same; Same; Same; Same; Persons Involved in Reserva Troncal.The persons involved
in reserva troncal are: (1) The ascendant or brother or sister from whom the property was
received by the descendant by lucrative or gratuitous title; (2) The descendant
or prepositus (propositus) who received the property; (3) The reservor (reservista), the other
ascendant who obtained the property from the prepositus by operation of law; and (4) The
reservee (reservatario) who is within the third degree from the prepositusand who belongs
to the (linea o tronco) from which the property came and for whom the property should be
reserved by the reservor. It should be pointed out that the ownership of the properties
should be reckoned only from Exequiels as he is the ascendant from where the first
transmission occurred, or from whom Gregoria inherited the properties in dispute. The law
does not go farther than such ascendant/brother/sister in determining the lineal character
of the property. It was also immaterial for the CA to determine whether Exequiel
predeceased Placido and Dominga or whether Gregoria predeceased Exequiel. What is
pertinent is that Exequiel owned the properties and he is the ascendant from whom the
properties in dispute originally came. Gregoria, on the other hand, is the descendant who
received the properties from Exequiel by gratuitous title.
Same; Same; Same; Same; Article 891 of the Civil Code simply requires that the
property should have been acquired by the descendant or prepositus from an ascendant by
gratuitous or lucrative title. A transmission is gratuitous or by gratuitous title when the
recipient does not give anything in return.Article 891 simply requires that the property
should have been acquired by the descendant or prepositus from an ascendant by gratuitous
or lucrative title. A transmission is gratuitous or by gratuitous title when the recipient does
not give anything in return. At risk of being repetitious, what was clearly established in this
case is that the properties in dispute were owned by Exequiel (ascendant). After his death,
Gregoria (descendant/prepositus) acquired the properties as inheritance.

Same; Same; Same; Same; Collateral Relatives; In determining the collateral line of
relationship, ascent is made to the common ancestor and then descent to the relative from
whom the computation is made.Gregorias ascendants are her parents, Exequiel and
Leonor, her grandparents, great-grandparents and so on. On the other hand, Gregorias
descendants, if she had one, would be her children, grandchildren and great-grandchildren.
Not being Gregorias ascendants, both petitioners and Julia, therefore, are her collateral
relatives. In determining the collateral line of relationship, ascent is made to the common
ancestor and then descent to the relative from whom the computation is made. In the case
of Julias collateral relationship with Gregoria, ascent is to be made from Gregoria to her
mother Leonor (one line/degree), then to the common ancestor, that is, Julia and Leonors
parents (second line/degree), and then descent to Julia, her aunt (third line/degree). Thus,
Julia is Gregorias collateral relative within the third degree and not her ascendant.
Same; Same; Same; Same; Same; The person from whom the degree should be reckoned
is the descendant/prepositusthe one at the end of the line from which the property came
and upon whom the property last revolved by descent.Petitioners cannot be considered
reservees/reservatarios as they are not relatives within the third degree of Gregoria from
whom the properties came. The person from whom the degree should be reckoned is the
descendant/prepositusthe one at the end of the line from which the property came and
upon whom the property last revolved by descent. It is Gregoria in this case. Petitioners are
Gregorias

fourth

degree

relatives,

being

her

first

cousins. First

cousins

of

theprepositus are fourth degree relatives and are not reservees or reservatarios.
Same; Same; Same; Same; Relatives of the fourth and the succeeding degrees can never
be considered as reservatarios, since the law does not recognize them as such. They cannot
even claim representation of their predecessors Antonio and Valentin as Article 891 grants
a personal right of reservation only to the relatives up to the third degree from whom the
reservable properties came. The only recognized exemption is in the case of nephews and
nieces of the prepositus, who have the right to represent their ascendants (fathers and
mothers) who are the brothers/sisters of the prepositus and relatives within the third
degree. InFlorentino v. Florentino, the Court stated: Following the order prescribed by law
in legitimate succession, when there are relatives of the descendant within the third degree,
the right of the nearest relative, calledreservatario, over the property which
thereservista (person holding it subject to reservation) should return to him, excludes that
of the one more remote. The right of representation cannot be alleged when the one
claiming same as a reservatario of the reservable property is not among the relatives within
the third degree belong to the line from which such property came, inasmuch asthe right
granted by the Civil Code in [A]rticle 811 [now Article 891] is in the highest
degree personal and for the exclusive benefit of the designated persons who are
the relatives, within the third degree, of the person from whom the reservable

property came. Therefore,relatives of the fourth and the succeeding degrees can
never be considered as reservatarios, since the law does not recognize them as
such.x x x [N]evertheless there is right of representation on the part of reservatarios who
are within the third degree mentioned by law, as in the case of nephews of the deceased
person from whom the reservable property came. x x x. (Emphasis and underscoring ours)
23

Same; Same; Same; Same; In reserva troncal, the reservista who inherits from a
prepositus, whether by the latters wish or by operation of law, acquires the inheritance by
virtue of a title perfectly transferring absolute ownership; It is when the reservation takes
place or is extinguished, that a reservatario becomes, by operation of law, the owner of the
reservable property.The Court takes note of a palpable error in the RTCs disposition of
the case. In upholding the right of petitioners over the properties, the RTC ordered the
reconveyance of the properties to petitioners and the transfer of the titles in their names.
What the RTC should have done, assuming for arguments sake that reserva troncal is
applicable, is have the reservable nature of the property registered on respondents titles. In
fact, respondent, as reservista, has the duty to reserve and to annotate the reservable
character of the property on the title. Inreserva troncal, the reservista who inherits from
a prepositus, whether by the latters wish or by operation of law, acquires the inheritance by
virtue of a title perfectly transferring absolute ownership. All the attributes of ownership
belong to him exclusively. The reservor has the legal title and dominion to the reservable
property but subject to the resolutory condition that such title is extinguished if the
reservor predeceased the reservee. The reservor is a usufructuary of the reservable
property. He may alienate it subject to the reservation. The transferee gets the revocable
and conditional ownership of the reservor. The transferees rights are revoked upon the
survival of the reservees at the time of the death of the reservor but become indefeasible
when the reservees predecease the reservor. (Citations omitted) It is when the reservation
takes place or is extinguished, that a reservatariobecomes, by operation of law, the owner of
the reservable property. In any event, the foregoing discussion does not detract from the fact
that petitioners are not entitled to a reservation of the properties in dispute.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Gancayco, Balasbas and Associates Law Office for petitioners.
Manuel S. Obedoza, Jr. for respondents Carmen Delos Santos, et al.
REYES,J.:

Reserva troncal is a special rule designed primarily to assure the return of a

reservable property to the third degree relatives belonging to the line from which
the property originally came, and avoid its being dissipated into and by the relatives
of the inheriting ascendant.1
The Facts
The properties subject in the instant case are three parcels of land located in Sta.
Maria, Bulacan: (1) Lot 1681-B, with an area of 7,749 square meters; 2 (2) Lot 1684,
with an area of 5,667 sq m;3 and (3) Lot No. 1646-B, with an area of 880 sq m.4 Lot
Nos. 1681-B and 1684 are presently in the name of respondent Julia Delos
Santos5 (respondent). Lot No. 1646-B, on the other hand, is also in the name of
respondent but co-owned by Victoria Pantaleon, who bought one-half of the property
from petitioner Maria Mendoza and her siblings.
Petitioners are grandchildren of Placido Mendoza (Placido) and Dominga
Mendoza (Dominga). Placido and Dominga had four children: Antonio, Exequiel,
married

to

Leonor, Apolonioand Valentin.

Petitioners

Maria,

Deogracias,

Dionisia, Adoracion, Marcela and Ricardo are the children of Antonio. Petitioners
Juliana, Fely, Mercedes, Elvira and Fortunato, on the other hand, are Valentins
children. Petitioners alleged that the properties were part of Placido and Domingas
properties that were subject of an oral partition and subsequently adjudicated to
Exequiel. After Exequiels death, it passed on to his spouse Leonor and only
daughter, Gregoria. After Leonors death, her share went to Gregoria. In 1992,
Gregoria died intestate and without issue. They claimed that after Gregorias death,
respondent, who is Leonors sister, adjudicated unto herself all these properties as
the sole surviving heir of Leonor and Gregoria. Hence, petitioners claim that the
properties should have been reserved by respondent in their behalf and must now
revert back to them, applying Article 891 of the Civil Code on reserva troncal.
Respondent, however, denies any obligation to reserve the properties as these did
not originate from petitioners familial line and were not originally owned by Placido
and Dominga. According to respondent, the properties were bought by Exequiel and
Antonio from a certain Alfonso Ramos in 1931. It appears, however, that it was only
Exequiel who was in possession of the properties.6

The Regional Trial Court (RTC) of Malolos, Bulacan, Branch 6, found merit in
petitioners claim and granted their action for Recovery of Possession byReserva
Troncal, Cancellation of TCT and Reconveyance. In its Decision dated November 4,
2002, the RTC disposed as follows:
WHEREFORE, premised from the foregoing judgment [is] hereby rendered:
1.Ordering [respondents] (heirs of Julia Policarpio) to reconvey the three (3) parcels of
land subject of this action in the name of the plaintiffs enumerated in the complaint
including intervenor Maria Cecilia M. Mendoza except one-half of the property described in
the old title[,] TCT No. T-124852(M) which belongs to Victorina Pantaleon;
2.Ordering the Register of Deeds of Bulacan to cancel the titles in the name of Julia
Policarpio[,] TCT No. T-149033(M), T-183631(M) and T-149035(M) and reconvey the same to
the enumerated plaintiffs; [and]
3.No pronouncement as to claims for attorneys fees and damages and costs.
SO ORDERED.

On appeal, the Court of Appeals (CA) reversed and set aside the RTC decision
and dismissed the complaint filed by petitioners. The dispositive portion of the CA
Decision dated November 16, 2006 provides:
WHEREFORE, premises considered, the November 4, 2002 Decision of the Regional
Trial Court, Br. 6, Third Judicial Region, Malolos, Bulacan, is REVERSED and SET
ASIDE. The Third Amended Complaint in Civil Case No. 609-M-92 is herebyDISMISSED.
Costs against the Plaintiffs-Appellants.
SO ORDERED.

Petitioners filed a motion for reconsideration but the CA denied the same per
Resolution9 dated January 17, 2007.
In dismissing the complaint, the CA ruled that petitioners failed to establish that
Placido and Dominga owned the properties in dispute. 10 The CA also ruled that even
assuming that Placido and Dominga previously owned the properties, it still cannot

be subject toreserva troncal as neither Exequiel predeceased Placido and Dominga

nor did Gregoria predecease Exequiel.11
Now before the Court, petitioners argue that:
A.
THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING THAT THE SUBJECT
PROPERTIES ARE NOT RESERVABLE PROPERTIES, COMING AS THEY DO FROM
THE FAMILY LINE OF THE PETITIONERS MENDOZAS.
B.
THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING THAT THE
PETITIONERS MENDOZAS DO NOT HAVE A RIGHT TO THE SUBJECT PROPERTIES
BY VIRTUE OF THE LAW ON RESERVA TRONCAL.
12

Petitioners take exception to the ruling of the CA, contending that it is sufficient
that the properties came from the paternal line of Gregoria for it to be subject
to reserva troncal. They also claim the properties in representation of their own
predecessors, Antonio and Valentin, who were the brothers of Exequiel.13
Ruling of the Court
This petition is one for review oncertiorari under Rule 45 of the Rules of Court.
The general rule in this regard is that it should raise only questions of law. There
are, however, admitted exceptions to this rule, one of which is when the CAs
findings are contrary to those of the trial court. 14 This being the case in the petition
at hand, the Court must now look into the differing findings and conclusion of the
RTC and the CA on the two issues that ariseone, whether the properties in
dispute are reservable properties and two, whether petitioners are entitled to a
reservation of these properties.
Article

891

of

the

Civil

on reserva troncal
The principle of reserva troncal is provided in Article 891 of the Civil Code:

Code

Art.891.The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother or sister,
is obliged to reserve such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and belong to the line from
which said property came. (Emphasis ours)

There are three (3) lines of transmission in reserva troncal. The first
transmission is by gratuitous title, whether by inheritance or donation, from an
ascendant/brother/sister

to

descendant

called

the prepositus.

Thesecond

transmission is by operation of law from the prepositus to the other ascendant or

reservor, also called thereservista. The third and last transmission is from
the reservista to the reservees or reservatarios who must be relatives within the
third degree from which the property came.15
The
property
dant

lineal
is
from

character
reckoned
whom

of
from
the

the

reservable
the

prepositus

ascenre-

ceived the property by gratuitous title

Based on the circumstances of the present case, Article 891 on reserva troncal is
not applicable.
The fallacy in the CAs resolution is that it proceeded from the erroneous premise
that Placido is the ascendant contemplated in Article 891 of the Civil Code. From
thence, it sought to trace the origin of the subject properties back to Placido and
Dominga, determine whether Exequiel predeceased Placido and whether Gregoria
predeceased Exequiel.
The persons involved in reserva troncal are:
(1)The ascendant or brother or sister from whom the property was received by
the descendant by lucrative or gratuitous title;
(2)The descendant or prepositus (propositus) who received the property;
(3)The reservor (reservista), the other ascendant who obtained the property
from the prepositus by operation of law; and

(4)The reservee (reservatario) who is within the third degree from

theprepositus and who belongs to the (linea o tronco) from which the property
came and for whom the property should be reserved by the reservor. 16
It should be pointed out that the ownership of the properties should be reckoned
only from Exequiels as he is the ascendant from where the first transmission
occurred, or from whom Gregoria inherited the properties in dispute. The law does
not go farther than such ascendant/brother/sister in determining the lineal
character of the property.17 It was also immaterial for the CA to determine whether
Exequiel predeceased Placido and Dominga or whether Gregoria predeceased
Exequiel. What is pertinent is that Exequiel owned the properties and he is the
ascendant from whom the properties in dispute originally came. Gregoria, on the
other hand, is the descendant who received the properties from Exequiel by
gratuitous title.
Moreover, Article 891 simply requires that the property should have been
acquired by the descendant or prepositusfrom an ascendant by gratuitous or
lucrative title. A transmission is gratuitous or by gratuitous title when the recipient
does not give anything in return.18 At risk of being repetitious, what was clearly
established in this case is that the properties in dispute were owned by Exequiel
(ascendant). After his death, Gregoria (descendant/prepositus) acquired the
properties as inheritance.
Ascendants,
collateral

descendants
relatives

under

and
Article

964 of the Civil Code

Article 891 provides that the person obliged to reserve the property should be an
ascendant (also known as the reservor/reservista) of the descendant/prepositus.
Julia, however, is not Gregorias ascendant; rather, she is Gregorias collateral
relative.
Article 964 of the Civil Code provides for the series of degrees among ascendants
and descendants, and those who are not ascendants and descendants but come from
a common ancestor, viz.:
Art.964.A series of degrees forms a line, which may be either direct or collateral.

A direct line is that constituted by the series of degrees among ascendants and
descendants.
A collateral line is that constituted by the series of degrees among persons who are not
ascendants and descendants, but who come from a common ancestor. (Emphasis and
italics ours)

Gregorias ascendants are her parents, Exequiel and Leonor, her grandparents,
great-grandparents and so on. On the other hand, Gregorias descendants, if she
had one, would be her children, grandchildren and great-grandchildren. Not being
Gregorias ascendants, both petitioners and Julia, therefore, are her collateral
relatives. In determining the collateral line of relationship, ascent is made to the
common ancestor and then descent to the relative from whom the computation is
made. In the case of Julias collateral relationship with Gregoria, ascent is to be
made from Gregoria to her mother Leonor (one line/degree), then to the common
ancestor, that is, Julia and Leonors parents (second line/degree), and then descent
to Julia, her aunt (third line/degree). Thus, Julia is Gregoriascollateral relative
within the third degree and not her ascendant.
First

cousins

prepositus

are

of
fourth

the

descendant/
degree

rela-

tives and cannot be considered reservees/reservatarios

Moreover,
petitioners
cannot
be
considered
reservees/
reservatarios as they are not relatives within the third degree of Gregoria from
whom the properties came. The person from whom the degree should be reckoned is
the descendant/prepositusthe one at the end of the line from which the property
came and upon whom the property last revolved by descent. 19 It is Gregoria in this
case. Petitioners are Gregorias fourth degree relatives, being her first cousins. First
cousins of theprepositus are fourth degree relatives and are not reservees
orreservatarios.20
They cannot even claim representation of their predecessors Antonio and
Valentin as Article 891 grants a personal right of reservation only to the relatives
up to the third degree from whom the reservable properties came. The only
recognized exemption is in the case of nephews and nieces of the prepositus, who
have the right to represent their ascendants (fathers and mothers) who are the

brothers/sisters
of
the prepositus and
relatives
21
22
degree. InFlorentino v. Florentino, the Court stated:

within

the

third

Following the order prescribed by law in legitimate succession, when there are relatives
of the descendant within the third degree, the right of the nearest relative,
calledreservatario, over the property which thereservista (person holding it subject to
reservation) should return to him, excludes that of the one more remote. The right of
representation cannot be alleged when the one claiming same as a reservatario of the
reservable property is not among the relatives within the third degree belong to the line
from which such property came, inasmuch asthe right granted by the Civil Code in
[A]rticle 811 [now Article 891] is in the highest degree personal and for the
exclusive benefit of the designated persons who are the relatives, within the third
degree,

of

the

person

from

whom

the

reservable

property

came.

Therefore,relatives of the fourth and the succeeding degrees can never be

considered as reservatarios, since the law does not recognize them as such.
x x x [N]evertheless there is right of representation on the part of reservatarioswho are
within the third degree mentioned by law, as in the case of nephews of the deceased person
from whom the reservable property came. x x x. (Emphasis and underscoring ours)
23

The conclusion, therefore, is that while it may appear that the properties are
reservable in character, petitioners cannot benefit from reserva troncal. First,
because Julia, who now holds the properties in dispute, is not the other ascendant
within the purview of Article 891 of the Civil Code and second, because petitioners
are not Gregorias relatives within the third degree. Hence, the CAs disposition that
the complaint filed with the RTC should be dismissed, only on this point, is correct.
If at all, what should apply in the distribution of Gregorias estate are Articles 1003
and 1009 of the Civil Code, which provide:
Art. 1003.If there are no descendants, ascendants, illegitimate children, or a surviving
spouse, the collateral relatives shall succeed to the entire estate of the deceased in
accordance with the following articles.
Art. 1009.Should there be neither brothers nor sisters, nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by reason
of relationship by the whole blood.

Nevertheless, the Court is not in the proper position to determine the proper
distribution of Gregorias estate at this point as the cause of action relied upon by
petitioners in their complaint filed with the RTC is based solely on reserva troncal.
Further, any determination would necessarily entail reception of evidence on
Gregorias entire estate and the heirs entitled thereto, which is best accomplished in
an action filed specifically for that purpose.
A

reservista

of

the

the

reservation

acquires
reservable
takes

ownership
property

place

until
or

is

extinguished
Before concluding, the Court takes note of a palpable error in the RTCs disposition of the case. In
upholding the right of petitioners over the properties, the RTC ordered the reconveyance of the
properties to petitioners and the transfer of the titles in their names. What the RTC should have
done, assuming for arguments sake that reserva troncal is applicable, is have the reservable nature
of the property registered on respondents titles. In fact, respondent, as reservista, has the duty to
reserve and to annotate the reservable character of the property on the title. 24 In reserva troncal,
thereservista who inherits from a prepositus, whether by the latters wish or by operation of law,
acquires the inheritance by virtue of a title perfectly transferring absolute ownership. All the
attributes of ownership belong to him exclusively.25
The reservor has the legal title and dominion to the reservable property but subject to the resolutory
condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary
of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and
conditional ownership of the reservor. The transferees rights are revoked upon the survival of the reservees at
the time of the death of the reservor but become indefeasible when the reservees predecease the
reservor. (Citations omitted)
26

It is when the reservation takes place or is extinguished, 27 that a reservatariobecomes, by

operation of law, the owner of the reservable property. 28 In any event, the foregoing discussion does
not detract from the fact that petitioners are not entitled to a reservation of the properties in dispute.
WHEREFORE, the petition is DENIED. The Decision dated November 16, 2006 and Resolution
dated January 17, 2007 of the Court of Appeals in CA-G.R. CV No. 77694 insofar as it dismissed the
Third Amended Complaint in Civil CaseNo. 609-M-92 are AFFIRMED. This Decision is without
prejudice to any civil action that the heirs of Gregoria Mendoza may file for the settlement of her
estate or for the determination of ownership of the properties in question.

SO ORDERED.
Sereno (C.J., Chairperson), Leonardo-De Castro, Bersamin andVillarama, Jr., JJ., concur.
Petition denied, judgment and resolution affirmed.
Notes.Our laws do not prohibit the probate of wills executed by foreigners abroad although the
same have not as yet been probated and allowed in the countries of their execution. ( Palaganas vs.
Palaganas, 640 SCRA 538 [2011])
Preterition is the total omission of a compulsory heir from the inheritanceit consists in the
silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not
mentioning him at all, or by not giving him anything in the hereditary property but without
expressly disinheriting him, even if he is mentioned in the will in the latter case. (Heirs of Policronio
M. Ureta, Sr. vs. Heirs of Liberato M. Ureta, 657 SCRA 555 [2011])

[No. 7890. September 29, 1914.]

FILOMENA PECSON, as administratrix of the last will and testament of Florencio
Pecson et al., plaintiffs and appellants,vs. ROSARIO MEDIAVILLO, defendant and
appellee.
DESCENT AND DISTRIBUTION;DISINHERITANCE.Disinheritance of a lawful
heir can only be made for one of the causes expressly fixed by law. (Arts. 848, 756, 853,
and 849, Civil Code.) Such disinheritance can only be effected by a will in which shall be
mentioned the legal grounds or causes for such disinheritance. Article 850 of the Civil
Code provides that the reason for the disinheritance shall be established by the heirs of
the testator. In other words, if the person disinherited shall deny the truthfulness of the
cause of disinheritance, he may be permitted to support his allegations by proof. (Art.
851, Civil Code.) In accordance with the foregoing provisions of the Civil Code, courts
may inquire into the justice of a disinheritance, and if they find that the disinheritance
was without cause, that part of the will may be pronounced null and void.

APPEAL from a judgment of the Court of First Instance of Albay. Moir, J.

The facts are stated in the opinion of the court.
S, E. Imperial for appellants.
Tomas Lorayes for appellee.

JOHNSON, J.;
It appears from the record that some time prior to the 17th day of September, 1910,
the last will and testament of Florencio Pecson was presented to the Court of First
Instance of the Province of Albay for probate. Mr. Tomas Lorayes, an attorney at
law, opposed the legalization of the will on the ground that it had not been
authorized nor signed by the deceased, in accordance with the provisions of the Code
of Civil Procedure. After hearing the respective parties, the Honorable Percy M.
Moir, judge, found that the will had been signed and executed in accordance with
the provisions of law, and denied the opposition on the 17th day of September, 1910.
On the 18th day of September, 1910, the said Tomas Lorayes, representing Basiliso
Mediavillo and Rosario Mediavillo, presented a motion in the words following:
1. "1.That Rosario Mediavillo is and Joaquin Mediavillo was a legitimate child of the
deceased Teresa Pecson, who also was a daughter of the testator, Florencio Pecson,
and therefore the first mentioned is and the second was a grandchild of the latter.
2. "2.That the said granddaughter, Rosario Mediavillo y Pecson, was disinherited by
her grandfather, the testator Florencio Pecson, according to clause 3 of the will,
because she failed to show him due respect and on a certain occasion raised her
hand against him.
3. "3.That the interested party did not commit such an act, and if perhaps she did, it
was due to the derangement of her mental faculties which occurred a long time ago
and from which she now suffers in periodical attacks.

"By reason of all the foregoing and because the disinheriting clause 3 of the will is
unfounded, the undersigned prays the court to annul the said clause and to make
the testator's grandchildren, Rosario and Joaquin Mediavillo (the latter died
without succession, but is represented now by his father, Basiliso Mediavillo),
participants in the estate left by their grandfather; and, finally, that the court grant
such other relief as it may deem just and equitable."
After a consideration .of the question presented by said motion, the lower court,
on the 22d day of September, 1911, rendered the following decision:
"This case has come up to-day for a hearing on the declaration of heirs of the
deceased Florencio Pecson, who died in Daraga, about the year 1910.

"From the evidence it appears that the deceased had eight children by his wife
Nicolasa Manjares, likewise deceased, which c hildren are those named
Emerenciano, Teresa, Filomena, Asuncion, Rufino, Zoila, Emiliano, and Perfecto, all
surnamed Pecson. It also appears that Rufino Pecson absented himself from these
Islands twenty-five years ago, going to Australia, and that nothing has been heard of
him for the past twenty years. The said Rufino Pecson left no children in the
Philippines and was unmarried when he emigrated. As nothing has been heard of
him for twenty years, it is presumed that he died and it is held that the part of this
estate to which he was entitled must be divided among the other heirs.
"It also appears from the evidence that Teresa Pecson married Basiliso
Mediavillo, by whom she had two children, Joaquin and Rosario Mediavillo. Teresa
also died, leaving these two children and her husband, Basiliso Mediavillo. Her son
Joaquin died. unmarried and childless, before the death of the testator, Florencio
Pecson. Rosario is the only living daughter of Teresa and the latter's husband,
Basiliso Mediavillo, is also living. The evidence shows that this girl Rosario became
insane in 1895, when she went to Nueva Caceres to study in college, and it has been
proved that it was previous to this date that she disobeyed her grandfather and
raised her hand against him, and, as the testator states in the third paragraph of
his will, he disinherited her. This court understands that this Rosario, who was
then 14 years of age, and who shortly afterwards became insane, was not
responsible for her acts and should not have been disinherited by her grandfather.
"The court therefore decrees that this part of the will is contrary to law and sets
it aside as being of no force or value whatever, The court further holds that Rosario
Mediavillo, the daughter of Teresa Pecson, is the heiress of the one-half of the share
of this estate pertaining to the said Teresa, and that her father, as the heir of his
son Joaquin, also. Teresa's son, is the heir of the other one-half of the said share
pertaining to Teresathat is, of the oneseventh of this estate that pertains to the
latter. Moreover, the court decrees that, besides the two heirs just above mentioned,
Emerciano, Filomena, Asuncion, Zoila, Emiliano, and Perfecto, surnamed Pecson,
and the children -of Teresa, are also heirs of the estate of Florencio Pecson."
From that decision the plaintiff appealed to this court and made the following
assignments of error:
"FIRST ERROR.

"The lower court erred in finding' that the part of the will which disinherits Rosario
Mediavillo is contrary to law, and in setting it aside as being of no force or value whatever.
"SECOND ERROR.
"The lower court erred by decreeing that Basiliso Mediavillo, the father of Joaquin
Mediavillo, is the heir by representation of the one-half of the one-seventh of this estate
pertaining to Joaquin Mediavillo."

With reference to the first assignment of error it may be said that from the record it
appears that during the lifetime of Florencio Pecson he had been married to
Nicolasa Manjares, with whom he had eight children, named Filomena, Asuncion,
Zoila, Emerenciano, Emiliano, Perfecto, Rufino and Teresa Pecson; that before the
death of Florencio Pecson he executed and delivered the will in question. The will
made no provision for the said Rufino Pecson,. neither was there any provision in
the will for the said Teresa. All of the other children were named as heirs in said
will. It appears that Teresa had been married with one Basiliso Mediavillo, and that
some time before the making of the will in question she died, leaving her husband
and two children, Joaquin Mediavillo and Rosario Mediavillo, as her heirs. It also
appears from the record that Joaquin Mediavillo died without heirs, leaving as the
only heirs of the said Teresa Pecson, her husband, Basiliso Mediavillo and the said
Rosario Mediavillo. The said Joaquin Mediavillo died before his grandfather,
Florencio Pecson, and probably before the will in question was made.
Paragraph 3 of the will disinherited Rosario Mediavillo in the following language:
"I declare that one of my daughters, named Teresa, now deceased, left a legitimate
daughter named Rosario Mediavillo. I also declare that I disinherit my granddaughter, the
said Rosario Mediavillo, because she was grossly disrespectful to me and because on one
occasion, when it was I do not remember.she raised her hand against me. Therefore, it is my
will that t he s aid Ros ario Media villo shal no share in my property."

The defendant Rosario Mediavillo, in the motion which she presented and which is
copied above, alleges that she was disinherited without cause. Upon a consideration
of that question, the lower court found that she had been disinherited without caus
e a nd annul led said para g ra the will. That order of the lower court constitutes the
error complained of by the appellant in her first assignment of error.

By reference to said paragraph 3 above quoted, it will be seen that Florencio

Pecson disinherited the said Rosario Mediavillo "because sh e w as gros sly
disrespec tf ul to because on one occasion, when it was I do not remember, she
raised her hand against me. Therefore it is my will that she, the said Rosario
Mediavillo, shall have no share in my property.''
The lower court admitted proof upon the question of the responsibility of the said
Rosario Mediavillo at the time she offered the offense to her grandfather, Florencio
Pecson. After hearing the proof, the lower court reached the following conclusion:
"The evidence shows that this girl Rosario became insane in 1895, when she went
to Nueva Caceres to study in college, and it has been proved that it was previous to
this date that she disobeyed her grandfather and raised her hand against him, and,
as the testator states in the third paragraph of his will, he disinherited her, This
court understands that this Rosario, who was then 14 years of age, and who shortly
afterwards became insane, was not responsible for her acts and should not have
been disinherited by her grandfather."
The first assignment of error presents the question whether or not the courts,
when a parent disinherits his children, may inquire into the cause of the
disinheritance and decide that there was or was not ground for such disinheritance.
The Civil Code (art. 848) provides that disinheritance shall only take place for one of
the causes expressly fixed by law. In accordance with the provisions of that article
(848) we find that articles 756 and 853 provide the cases or causes for
disinheritance; or, in other words, the cases or causes in which the ancestors may by
will disinherit their heirs. Article 849 of the Civil Code provides that the
disinheritance can only be effected by the testament, in which shall be mentioned
the legal grounds or causes for such disinheritance. If it is true that heirs can be
disinherited only by will, and for causes mentioned in the Civil Code, it would seem
to follow that the courts might properly inquire whether the disinheritance has been
made properly and for the causes provided for by law. The right of the courts to
inquire into the causes and whether there was sufficient cause for the
disinheritance or not, seems to be supported by express provisions of the Civil Code.
Article 850 provides that "the proof' of the truthfulness of the reason for
disinheritance shall be established by the heirs of the testator, should the
disinherited person deny it." It would appear then that if the person disinherited
should deny the truthfulness of the cause of disinheritance, he might be permitted

to support his allegation by proof. The right of the court to inquire whether or not
the disinheritance was made for just cause is also sustained by the provisions of
article 851, which in part provides that:
"Disinheritance made without statement of the reason, or for a cause the truth of
which, if contradicted, should not be proven * * * shall annul the designation of
heirship, in so far as it prejudices the person disinherited."
It seems clear from the above-quoted provisions, that the courts may inquire into the justice of a
disinheritance such as was attempted in the present case, and if they find that the disinheritance
was without cause, that part of the testament or will may be pronounced null and void. It remains,
however, to be seen whether the evidence adduced during the trial of the present cause was sufficient
to show that the disinheritance made in paragraph 3 of the will was made for just cause. It appears
from the record that when Rosario Mediavillo was about 14 years of age, she had received some
attentions from a young manthat she had received a letter from himand that her grandf ather,
Florencio Pecson, took occasion to talk to her about the relations between her and the said young
man; that it was upon that occasion when, it is alleged, the disobedience and disrespect were shown
to her grandfather, and that was the cause for her disinheritance by her grandfather. The record
shows that very soon after said event she lost the use of her mental powers and that she has never
regained them, except for very brief periods, up to the present time. The lower court, taking into
consideration her tender years, and the fact that she very soon thereafter lost the use of her mental
faculties, reached the conclusion that she was probably not responsible for the disrespect and
disobedience shown to her grandfather in the year 1894 or 1895.
After a careful consideration of the record, we are inclined to believe that the same supports the
.conclusions of the lower court and that he did not commit the error complained of in the first
assignment of error.
With reference to the second assignment of error, it will be remembered that Teresa Pecson, the
mother of Rosario Mediavillo, at the time of her death left two children, Rosario and Joaquin, and
her husband Basiliso Mediavillo, and that the said Joaquin Mediavillo died without heirs. The lower
court gave one-half of the inheritance of the said Teresa Pecson to Rosario Mediavillo and the share
that would have gone to Joaquin Mediavillo, to his father Basiliso Mediavillo. In that conclusion of
the lower court we think error was committed. The appellant relies upon the provisions of article 925
of the Civil Code, in his contention that the lower court committed an error. Article 925 provides
that:

"The right of representation shall always take place in the direct descending line, but never in the ascending. In
collateral lines, it shall take place only in favor of the children of brothers or sisters, whether they be of the
whole or half blood."

The appellee, in support of the conclusions of the lower court, cites articles 935 and 936 of the Civil
Code. Article 935 provides that:
"In the absence of legitimate children and descendants of the deceased, his ascendants shall inherit from him, to
the exclusion of collaterals."

Article 936 provides that:

"The father and mother, if living, shall inherit share and share alike. If one of them only survive, he or she shall
succeed to the son's entire estate."

It will be remembered that the whole argument of the appellants with reference to the first
assignment of error was that Rosario Mediavillo had been disinherited and the court evidently
believed that there were no "legitimate children, descendants of the deceased, surviving," and that
therefore the father or mother of said legitimate children would inherit as ascendants. Inasmuch,
however, as there was a descendant in the direct line, surviving, the inheritance could not ascend,
and for that reason the lower court committed an error in declaring that Basiliso Mediavillo was
entitled to inherit that share of the estate that would have belonged to Joaquin Mediavillo , h ad he b
een liv ing. T fore, and for all of the foregoing, that part of the judgment of the lower court nullifying
and setting aside paragraph 3 of the will is hereby affirmed, and that part of said judgment which
decrees to Basiliso Mediavillo one-half of the estate of Florencio Pecson; belonging to Teresa Pecson
and which would have been given to Joaquin Mediavillo, had he been surviving, is hereby revoked.
And without any finding as to costs, it is hereby ordered that the cause be remanded to the lower
court, with direction that judgment be entered in accordance herewith. and that such further
proceedings be had as the interested parties may deem necessary, for the purpose of disposing of that
part of the inheritance of Teresa Pecson which would have belonged to Joaquin Mediavillo, had he
been surviving.
Torres, Carson, and Moreland, JJ.,concur.
ARELLANO, C. J., concurring:
I agree with the second part of the decision reversing the judgment appealed from.
ARAULLO, J., dissenting:

I do not agree with that part of the decision which affirms the judgment appealed from.
Case remanded with instructions.
____________

TESTATE ESTATE
VDA.

DE

[No. 48627. February 19, 1943]

OF

VICENTE SINGSON PABLO,deceased. ROSALIA ROSARIO

SINGSON, petitioner-appellee, vs.JOSEFINA

LIM, oppositor-appellee, EMILIA

FLORENTINA

ET.

F.

VDA.

DE

AL.,oppositors-

appellees, EVARISTO SINGSON ET AL., oppositors-appellants.

DESCENT AND DISTRIBUTION; INTERPRETATION OF TESTAMENTARY PROVISION IN
CONNECTION WITH ARTICLE 751 OF THE CIVIL CODE. Don Vicente Singson
Pablo, a lawyer, died without any descendant or ascendant, his nearest surviving
relatives being his widow, four brothers, and four nieces, the children of a deceased sister. He left a will which was duly probated, clause 8 of which provides
that "all of my properties not disposed of otherwise in this testament shall be
distributed in equal parts to all who are entitled thereto." Article 751 of the Civil
Code, in turn, provides that "a disposition made in general terms in favor of the
testator's relatives shall be understood as made in favor of those nearest in
degree." The authorities differ on the interpretation of article 751. Some hold
that under said article the nephews and nieces inherit by representation together
with the brothers and sisters of the testator, as in legal succession; while others,
Manresa among them, hold that said article excludes nephews and nieces when
brothers and sisters survive. Held:That the testator, by referring to "all who are
entitled thereto," instead of referring to his "relatives," precisely meant to avoid
the uncertainty of the interpretation of article 751 and to indicate his wish that
the residue of his estate be distributed in equal parts to all who would have been
entitled to inherit from him had he died intestate.
APPEAL from an order of the Court of First Instance of Ilocos Sur. Bautista, J.
The facts are stated in the opinion of the court.
M. H. de Joya and Evaristo Singsonfor appellants.
Teofilo Mendoza and Vicente Paz for appellees.
OZAETA,J.:

Don Vicente Singson Pablo, a lawyer of Vigan, Ilocos Sur, died on April 15,1938,
without any descendant or ascendant, his nearest surviving relatives being his
widow Dona Rosalia Rosario, four brothers, and four nieces, the children of a
deceased sister. He left a will which was duly probated, clause 8 of which reads as
follows:

"Octavo.Ordeno y mando que todos mis bienes no dispuestos de otro modo en este
testamento, se distribuirn en partes iguales a todos los que tienen derecho a ello."
The widow, as administratrix, presented a project of partition in which the properties
not disposed of in the will were adjudicated to the four brothers and the four nieces of the
deceased "in the proportion provided in paragraph 8 of the will." The brothers, appellants
herein, objected to the project of partition insofar as it includes the nieces of the deceased,
on the ground that under clause 8 of the will, in relation to article 751 of the Civil Code,
they were not entitled to any share. The nieces also objected to the project of partition,
alleging that certain other specified properties had been omitted therefrom, which formed
part of the properties not disposed of and which under clause 8 of the will "should be
distributed in equal parts to all who are entitled thereto." The trial court sustained the
contention of the nieces (appellees herein) and ordered the administratrix "to amend the
project of partition so as to include therein the said properties and that all of those not dis posed of in the will be adjudicated in equal parts to the brothers and nieces of the
deceased."
The only question raised in this appeal is the interpretation of clause 8 of the will above
quoted. Said clause provides that "all of my properties not disposed of otherwise in this
testament shall be distributed in equal parts to all who are entitled thereto." In this
connection appellants invoke article 751 of the Civil Code, which provides that "a
disposition made in general terms in favor of the testator's relatives shall be understood as
made in favor of those nearest in degree."

The trial court noted that the testator, who was a lawyer, did not use the word
"relatives" in the clause in question. We do not need to decide here whether, had the
testator used the word "relatives," the nieces would be excluded.
The authorities differ on the interpretation of article 751. Some hold that under
said article the nephews and nieces inherit by representation together with the
brothers and sisters of the testator, as in legal succession; while others, Manresa
among them, hold that said article excludes nephews and nieces when brothers and
sisters survive. We think the testator, by referring to "all who are entitled thereto,"
instead of referring to his "relatives," precisely meant to avoid the uncertainty of the
interpretation of article 751 and to indicate his wish that the residue of his estate

be distributed in equal parts to all who would have been entitled to inherit from him
had he died intestate.
The order appealed from is affirmed, with costs. So ordered.
Yulo, C. J., Moran, Paras, andBocobo, J J., concur.
Order affirmed.

G.R. No. 155733. January 27, 2006.

IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA

DELGADO AND GUILLERMO RUSTIA
CARLOTA DELGADO VDA. DE DE LA ROSA and other HEIRS OF LUIS
DELGADO, namely, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA

DELGADO VDA. DE DANAO, ANGELA DELGADO ARESPACOCHAGA, TERESA

DELGADO PERLAS, CAROLINA DELGADO-ARESPACOCHAGA, RODOLFO
DELGADO, BENJAMIN DELGADO, GLICERIA DELGADO and CLEOFAS
DELGADO; and HEIRS OF GORGONIO DELGADO, namely, RAMON DELGADO
CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO CAMPO-REIZA,
YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and
MELINDA
DELGADO
CAMPO-MADARANG,
petitioners, vs. HEIRS
OF
MARCIANA RUSTIA VDA. DE DAMIAN, namely, GUILLERMO R. DAMIAN and
JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, namely, TERESITA
CRUZ-SISON, HORACIO R. CRUZ, JOSEFINA CRUZ-RODIL, AMELIA CRUZENRIQUEZ and FIDEL R. CRUZ, JR.; HEIRS OF ROMAN RUSTIA, SR., namely,
JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN RUSTIA,
JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-MIRANDA; and
GUILLERMINA RUSTIA, as Oppositors; and GUILLERMA RUSTIA, as
Intervenor, respondents.
1

Civil Law; Marriages; Although a marriage contract is considered a primary evidence of

marriage, its absence is not always proof that no marriage in fact took place.Although a
marriage contract is considered a primary evidence of marriage, its absence is not always
proof that no marriage in fact took place. Once the presumption of marriage arises, other
evidence may be presented in support thereof. The evidence need not necessarily or directly
establish the marriage but must at least be enough to strengthen the presumption of
marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo
Rustia, the passport issued to her as Josefa D. Rustia, the declaration under oath of no less
than Guillermo Rustia that he was married to Josefa Delgado and the titles to the
properties in the name of Guillermo Rustia married to Josefa Delgado, more than
adequately support the presumption of marriage. These are public documents which
are prima facie evidence of the facts stated therein. No clear and convincing evidence
sufficient to overcome the presumption of the truth of the recitals therein was presented by
petitioners.
Same; Same; Persons dwelling together apparently in marriage are presumed to be in
fact married.Petitioners failed to rebut the presumption of marriage of Guillermo Rustia
and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward
legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to
be in fact married. This is the usual order of things in society and, if the parties are not
what they hold themselves out to be, they would be living in constant violation of the
common rules of law and propriety. Semper praesumitur pro matrimonio. Always presume
marriage.

Same; Same; Presumptions of law are either conclusive or disputable.Presumptions of

law are either conclusive or disputable. Conclusive presumptions are inferences which the
law makes so peremptory that no contrary proof, no matter how strong, may overturn them.
On the other hand, disputable presumptions, one of which is the presumption of marriage,
can be relied on only in the absence of sufficient evidence to the contrary.
Same; Succession; The right of representation in the collateral line takes place only in
favor of the children of brothers and sisters (nephews and nieces); It cannot be exercised by
grandnephews and grandnieces.We note, however, that the petitioners before us are
already the nephews, nieces, grandnephews and grandnieces of Josefa Delgado. Under
Article 972 of the new Civil Code, the right of representation in the collateral line takes
place only in favor of the children of brothers and sisters (nephews and nieces).
Consequently, it cannot be exercised by grandnephews and grandnieces. Therefore, the only
collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are
her brothers and sisters, or their children who were still alive at the time of her death on
September 8, 1972. They have a vested right to participate in the inheritance. The records
not being clear on this matter, it is now for the trial court to determine who were the
surviving brothers and sisters (or their children) of Josefa Delgado at the time of her death.
Together with Guillermo Rustia, they are entitled to inherit from Josefa Delgado in
accordance with Article 1001 of the new Civil Code:
Same; Same; Adjudication by an heir of the decedents entire estate to himself by means
of an affidavit is allowed only if he is the sole heir of the estate.Since Josefa Delgado had
heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefas
estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an
heir of the decedents entire estate to himself by means of an affidavit is allowed only if he is
the sole heir to the estate.
Same; Paternity and Filiation; Under the new law, recognition may be compulsory or
voluntary; Cases of Compulsory Recognition.Under the new law, recognition may be
compulsory or voluntary. Recognition is compulsory in any of the following cases: (1) in
cases of rape, abduction or seduction, when the period of the offense coincides more or less
with that of the conception; (2) when the child is in continuous possession of status of a
child of the alleged father (or mother) by the direct acts of the latter or of his family; (3)
when the child was conceived during the time when the mother cohabited with the
supposed father; (4) when the child has in his favor any evidence or proof that the defendant
is his father. On the other hand, voluntary recognition may be made in the record of birth, a
will, a statement before a court of record or in any authentic writing.

Same; Same; Dual limitation in a judicial action for compulsory acknowledgement: the
lifetime of the child and the lifetime of the putative parent.There was apparently no doubt
that she possessed the status of an illegitimate child from her birth until the death of her
putative father Guillermo Rustia. However, this did not constitute acknowledgment but
a mere ground by which she could have compelled acknowledgment through the courts.
Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation:
the lifetime of the child and the lifetime of the putative parent. On the death of either, the
action for compulsory recognition can no longer be filed. In this case, intervenor Guillermas
right to claim compulsory acknowledgment prescribed upon the death of Guillermo Rustia
on February 28, 1974.
Same; Same; An authentic writing, for purposes of voluntary recognition, is understood
as a genuine or indubitable writing of the parent.The claim of voluntary recognition
(Guillermas second ground) must likewise fail. An authentic writing, for purposes of
voluntary recognition, is understood as a genuine or indubitable writing of the parent (in
this case, Guillermo Rustia). This includes a public instrument or a private writing
admitted by the father to be his. Did intervenors report card from the University of Santo
Tomas and Josefa Delgados obituary prepared by Guillermo Rustia qualify as authentic
writings under the new Civil Code? Unfortunately not. The report card of intervenor
Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears
there as intervenors parent/guardian holds no weight since he had no participation in its
preparation. Similarly, while witnesses testified that it was Guillermo Rustia himself who
drafted the notice of death of Josefa Delgado which was published in the Sunday Times on
September 10, 1972, that published obituary was not the authentic writing contemplated by
the law. What could have been admitted as an authentic writing was the original
manuscript of the notice, in the handwriting of Guillermo Rustia himself and signed by
him, not the newspaper clipping of the obituary. The failure to present the original signed
manuscript was fatal to intervenors claim.
Remedial Law; Settlement of Estate;Administrator; Words and Phrases; An
administrator is a person appointed by the court to administer the intestate estate of the
decedent; Order of preference in the appointment of an administrator prescribes in Section 6,
Rule 78 of the Rules of Court.An administrator is a person appointed by the court to
administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court
prescribes an order of preference in the appointment of an administrator.
Same; Same; Same; In the appointment of an administrator, the principal consideration
is the interest in the estate of the one to be appointed; Order of preference does not rule out
the appointment of co-administrators specially in cases where justice and equity demand
that opposing parties or factions be represented in the management of the estates.In the

appointment of an administrator, the principal consideration is the interest in the estate of

the one to be appointed. The order of preference does not rule out the appointment of coadministrators, specially in cases where justice and equity demand that opposing parties or
factions be represented in the management of the estates, a situation which obtains here.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Emilia Vidanes-Baloing andPadilla Law Office for petitioners.
Inocentes, Untalan, Untalan, Lacuanan & Associates Law Office for intervenor
G.S. Rustia.
CORONA, J.:
In this petition for review on certiorari, petitioners seek to reinstate the May 11,
1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55, in SP Case
No. 97668, which was reversed and set aside by the Court of Appeals in its
decision dated October 24, 2002.
4

Facts of the Case

This case concerns the settlement of the intestate estates of Guillermo Rustia and
Josefa Delgado. The main issue in this case is relatively simple: who, between
petitioners and respondents, are the lawful heirs of the decedents. However, it is
attended by several collateral issues that complicate its resolution.
6

The claimants to the estates of Guillermo Rustia and Josefa Delgado may be
divided into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her
half- and full-blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his sisters, his
nephews and nieces, his illegitimate child, and the de facto adopted child (ampunampunan) of the decedents.
7

10

The Alleged Heirs of Josefa Delgado

The deceased Josefa Delgado was the daughter of Felisa Delgado by one Lucio
Campo. Aside from Josefa, five other children were born to the couple, namely,
11

Nazario, Edilberta, Jose, Jacoba, and Gorgonio, all surnamed Delgado. Felisa
Delgado was never married to Lucio Campo, hence, Josefa and her full-blood
siblings were all natural children of Felisa Delgado.
However, Lucio Campo was not the first and only man in Felisa Delgados life.
Before him was Ramon Osorio with whom Felisa had a son, Luis Delgado. But,
unlike her relationship with Lucio Campo which was admittedly one without the
benefit of marriage, the legal status of Ramon Osorios and Felisa Delgados union is
in dispute.
12

The question of whether Felisa Delgado and Ramon Osorio ever got married is
crucial to the claimants because the answer will determine whether their
successional rights fall within the ambit of the rule against reciprocal intestate
succession between legitimate and illegitimate relatives. If Ramon Osorio and
Felisa Delgado had been validly married, then their only child Luis Delgado was a
legitimate half-blood brother of Josefa Delgado and therefore excluded from the
latters intestate estate. He and his heirs would be barred by the principle of
absolute separation between the legitimate and illegitimate families. Conversely, if
the couple were never married, Luis Delgado and his heirs would be entitled to
inherit from Josefa Delgados intestate estate, as they would all be within the
illegitimate line.
13

Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In
support thereof, they assert that no evidence was ever presented to establish it, not
even so much as an allegation of the date or place of the alleged marriage. What is
clear, however, is that Felisa retained the surname Delgado. So did Luis, her son
with Ramon Osorio. Later on, when Luis got married, his Partida de
Casamiento stated that he was hijo natural de Felisa Delgado (the natural child of
Felisa Delgado), significantly omitting any mention of the name and other
circumstances of his father. Nevertheless, oppositors (now respondents) insist that
the absence of a record of the alleged marriage did not necessarily mean that no
marriage ever took place.
14

15

16

Josefa Delgado died on September 8, 1972 without a will. She was survived by
Guillermo Rustia and some collateral relatives, the petitioners herein. Several
months later, on June 15, 1973, Guillermo Rustia executed an affidavit of selfadjudication of the remaining properties comprising her estate.

The Marriage of Guillermo Rustia and Josefa Delgado

Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado but
whether a marriage in fact took place is disputed. According to petitioners, the two
eventually lived together as husband and wife but were never married. To prove
their assertion, petitioners point out that no record of the contested marriage
existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado
as one of the sponsors referred to her as Seorita or unmarried woman.
17

The oppositors (respondents here), on the other hand, insist that the absence of a
marriage certificate did not of necessity mean that no marriage transpired. They
maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919
and from then on lived together as husband and wife until the death of Josefa on
September 8, 1972. During this period spanning more than half a century, they were
known among their relatives and friends to have in fact been married. To support
their proposition, oppositors presented the following pieces of evidence:
1. 1.Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo
J. Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of
the Commonwealth of the Philippines;
2. 2.Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947;
3. 3.Veterans Application for Pension or Compensation for Disability Resulting from
Service in the Active Military or Naval Forces of the United States- Claim No. C-4,
004, 503 (VA Form 526) filed with the Veterans Administration of the United States
of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself
[swore] to his marriage to Josefa Delgado in Manila on 3 June 1919;
18

4. 4.Titles to real properties in the name of Guillermo Rustia indicated that he was
married to Josefa Delgado.

The Alleged Heirs of Guillermo Rustia

Guillermo Rustia and Josefa Delgado never had any children. With no children of
their own, they took into their home the youngsters Guillermina Rustia Rustia and
Nanie Rustia. These children, never legally adopted by the couple, were what was
known in the local dialect asampun-ampunan.

During his life with Josefa, however, Guillermo Rustia did manage to father an
illegitimate child, the intervenor-respondent Guillerma Rustia, with one Amparo
Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter,
his own flesh and blood, and she enjoyed open and continuous possession of that
status from her birth in 1920 until her fathers demise. In fact, Josefa Delgados
obituary which was prepared by Guillermo Rustia, named the intervenorrespondent as one of their children. Also, her report card from the University of
Santo Tomas identified Guillermo Rustia as her parent/guardian.
19

20

Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no

interest in the intestate estate of Guillermo Rustia as she was never duly
acknowledged as an illegitimate child. They contend that her right to compulsory
acknowledgement prescribed when Guillermo died in 1974 and that she cannot
claim voluntary acknowledgement since the documents she presented were not the
authentic writings prescribed by the new Civil Code.
21

On January 7, 1974, more than a year after the death of Josefa Delgado,
Guillermo Rustia filed a petition for the adoption of their ampunampunanGuillermina Rustia. He stated under oath [t]hat he ha[d] no legitimate,
legitimated, acknowledged natural children or natural children by legal
fiction. The petition was overtaken by his death on February 28, 1974.
22

23

Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by
his sisters Marciana Rustia Vda. deDamian and Hortencia Rustia-Cruz, and by the
children of his predeceased brother Roman Rustia Sr., namely, Josefina Rustia
Albano, Virginia Rustia Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia
and Leticia Rustia Miranda.
24

Antecedent Proceedings
On May 8, 1975, Luisa Delgado Vda. deDanao, the daughter of Luis Delgado, filed
the original petition for letters of administration of the intestate estates of the
spouses Josefa Delgado and Guillermo Rustia with the RTC of Manila, Branch
55. This petition was opposed by the following: (1) the sisters of Guillermo Rustia,
namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz; (2) the heirs
of Guillermo Rustias late brother, Roman Rustia, Sr., and (3) the ampunampunan Guillermina Rustia Rustia. The opposition was grounded on the theory
25

26

that Luisa Delgado Vda. de Danao and the other claimants were barred under the
law from inheriting from their illegitimate half-blood relative Josefa Delgado.
In November of 1975, Guillerma Rustia filed a motion to intervene in the
proceedings, claiming she was the only surviving descendant in the direct line of
Guillermo Rustia. Despite the objections of the oppositors (respondents herein), the
motion was granted.
On April 3, 1978, the original petition for letters of administration was amended
to state that Josefa Delgado and Guillermo Rustia were never married but had
merely lived together as husband and wife.
On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss
the petition in the RTC insofar as the estate of Guillermo Rustia was concerned.
The motion was denied on the ground that the interests of the petitioners and the
other claimants remained in issue and should be properly threshed out upon
submission of evidence.
On March 14, 1988, Carlota DelgadoVda. de de la Rosa substituted for her sister,
Luisa Delgado Vda. de Danao, who had died on May 18, 1987.
On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as
administratrix of both estates. The dispositive portion of the decision read:
27

WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate of
the late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this Decision,
are hereby declared as the only legal heirs of the said Josefa Delgado who died intestate in
the City of Manila on September 8, 1972, and entitled to partition the same among
themselves in accordance with the proportions referred to in this Decision.
Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only
surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the
said decedent, to the exclusion of the oppositors and the other parties hereto.
The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late
Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and
effect.

As the estates of both dece[d]ents have not as yet been settled, and their settlement [is]
considered consolidated in this proceeding in accordance with law, a single administrator
therefor is both proper and necessary, and, as the petitioner Carlota Delgado Vda. de dela
Rosa has established her right to the appointment as administratrix of the estates, the
Court hereby APPOINTS her as the ADMINISTRATRIX of the intestate estate of the
decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J. RUSTIA.
Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the
petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite
bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00).
Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist
from her acts of administration of the subject estates, and is likewise ordered to turn over to
the appointed administratix all her collections of the rentals and income due on the assets
of the estates in question, including all documents, papers, records and titles pertaining to
such estates to the petitioner and appointed administratrix CARLOTA DELGADO VDA.
DE DE LA ROSA, immediately upon receipt of this Decision. The same oppositor is hereby
required to render an accounting of her actual administration of the estates in controversy
within a period of sixty (60) days from receipt hereof.
SO ORDERED.

28

On May 20, 1990, oppositors filed an appeal which was denied on the ground that
the record on appeal was not filed on time. They then filed a petition for certiorari
and mandamus which was dismissed by the Court of Appeals. However, on motion
for reconsideration and after hearing the parties oral arguments, the Court of
Appeals reversed itself and gave due course to oppositors appeal in the interest of
substantial justice.
29

30

31

32

In a petition for review to this Court, petitioners assailed the resolution of the
Court of Appeals, on the ground that oppositors failure to file the record on appeal
within the reglementary period was a jurisdictional defect which nullified the
appeal. On October 10, 1997, this Court allowed the continuance of the appeal. The
pertinent portion of our decision read:
33

As a rule, periods prescribed to do certain acts must be followed. However, under

exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of
substantial justice.
xxx

xxx

xxx

The respondent court likewise pointed out the trial courts pronouncements as to certain
matters of substance, relating to the determination of the heirs of the decedents and the
party entitled to the administration of their estate, which were to be raised in the appeal,
but were barred absolutely by the denial of the record on appeal upon too technical ground
of late filing.
xxx

xxx

xxx

In this instance, private respondents intention to raise valid issues in the appeal is
apparent and should not have been construed as an attempt to delay or prolong the
administration proceedings.
xxx

xxx

xxx

A review of the trial courts decision is needed.

xxx

xxx

xxx

WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the
Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for
the APPROVAL of the private respondents Record on Appeal and the CONTINUANCE of
the appeal from the Manila, Branch LV Regional Trial Courts May 11, 1990 decision.
SO ORDERED.

Acting on the appeal, the Court of Appeals partially set aside the trial courts
decision. Upon motion for reconsideration, the Court of Appeals amended its earlier
decision. The dispositive portion of the amended decision read:
34

35

36

With the further modification, our assailed decision is RECONSIDERED and VACATED.
Consequently, the decision of the trial court is REVERSED and SET ASIDE. A new one is
hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have
been legally married; 2.) the intestate estate of Dr. Guillermo Rustia, Jacoba DelgadoEncinas and the children of Gorgonio Delgado (Campo) entitled to partition among
themselves the intestate estate of Josefa D. Rustia in accordance with the proportion
referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr.
Guillermo Rustia and thereby entitled to partition his estate in accordance with the
proportion referred to herein; and 4.) the intervenor-appellee Guillerma S. Rustia as
ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment as
administratrix of his estate.

The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to
the intestate estate of Josefa Delgado shall issue to the nominee of the oppositorsappellants upon his or her qualification and filing of the requisite bond in the sum of FIVE
HUNDRED THOUSAND PESOS (P500,000.00).
Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist
from her acts of administration of the subject estates and to turn over to the appointed
administrator all her collections of the rentals and incomes due on the assets of the estates
in question, including all documents, papers, records and titles pertaining to such estates to
the appointed administrator, immediately upon notice of his qualification and posting of the
requisite bond, and to render an accounting of her (Guillermina Rustia Rustia) actual
administration of the estates in controversy within a period of sixty (60) days from notice of
the administrators qualification and posting of the bond.
The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo
Rustia on June 15, 1973 is REMANDED to the trial court for further proceedings to
determine the extent of the shares of Jacoba Delgado-Encinas and the children of Gorgonio
Delgado (Campo) affected by the said adjudication.

Hence, this recourse.

The issues for our resolution are:
1. 1.whether there was a valid marriage between Guillermo Rustia and Josefa Delgado;
2. 2.who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are;
3. 3.who should be issued letters of administration.

The Marriage of Guillermo Rustia and Josefa Delgado

A presumption is an inference of the existence or nonexistence of a fact which courts
are permitted to draw from proof of other facts. Presumptions are classified into
presumptions of law and presumptions of fact. Presumptions of law are, in turn,
either conclusive or disputable.
37

Rule 131, Section 3 of the Rules of Court provides:

Sec. 3. Disputable presumptions.The following presumptions are
uncontradicted, but may be contradicted and overcome by other evidence:

satisfactory

if

xxx

xxx

xxx

(aa) That a man and a woman deporting themselves as husband and wife have entered
into a lawful contract of marriage;
xxx

xxx

xxx

In this case, several circumstances give rise to the presumption that a valid
marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation
of more than 50 years cannot be doubted. Their family and friends knew them to be
married. Their reputed status as husband and wife was such that even the original
petition for letters of administration filed by Luisa Delgado Vda. de Danao in 1975
referred to them as spouses.
Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply
lived together as husband and wife without the benefit of marriage. They make
much of the absence of a record of the contested marriage, the testimony of a
witness attesting that they were not married, and a baptismal certificate which
referred to Josefa Delgado as Seorita or unmarried woman.
38

39

We are not persuaded.

First, although a marriage contract is considered a primary evidence of marriage,
its absence is not always proof that no marriage in fact took place. Once the
presumption of marriage arises, other evidence may be presented in support thereof.
The evidence need not necessarily or directly establish the marriage but must at
least be enough to strengthen the presumption of marriage. Here, the certificate of
identity issued to Josefa Delgado as Mrs. Guillermo Rustia, the passport issued to
her as Josefa D. Rustia, the declaration under oath of no less than Guillermo
Rustia that he was married to Josefa Delgado and the titles to the properties in the
name of Guillermo Rustia married to Josefa Delgado, more than adequately
support the presumption of marriage. These are public documents which areprima
facie evidence of the facts stated therein. No clear and convincing evidence
sufficient to overcome the presumption of the truth of the recitals therein was
presented by petitioners.
40

41

42

43

44

Second, Elisa Vda. de Anson, petitioners own witness whose testimony they
primarily relied upon to support their position, confirmed that Guillermo Rustia

had proposed marriage to Josefa Delgado and that eventually, the two had lived
together as husband and wife. This again could not but strengthen the presumption
of marriage.
Third, the baptismal certificate was conclusive proof only of the baptism
administered by the priest who baptized the child. It was no proof of the veracity of
the declarations and statements contained therein, such as the alleged single or
unmarried (Seorita) civil status of Josefa Delgado who had no hand in its
preparation.
45

46

Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and

Josefa Delgado. In this jurisdiction, every intendment of the law leans toward
legitimizing matrimony. Persons dwelling together apparently in marriage are
presumed to be in fact married. This is the usual order of things in society and, if
the parties are not what they hold themselves out to be, they would be living in
constant violation of the common rules of law and propriety.Semper prae-sumitur
pro matrimonio. Always presume marriage.
47

The Lawful Heirs Of Josefa Delgado

To determine who the lawful heirs of Josefa Delgado are, the questioned status of
the cohabitation of her mother Felisa Delgado with Ramon Osorio must first be
addressed.
As mentioned earlier, presumptions of law are either conclusive or disputable.
Conclusive presumptions are inferences which the law makes so peremptory that no
contrary proof, no matter how strong, may overturn them. On the other hand,
disputable presumptions, one of which is the presumption of marriage, can be relied
on only in the absence of sufficient evidence to the contrary.
48

Little was said of the cohabitation or alleged marriage of Felisa Delgado and
Ramon Osorio. The oppositors (now respondents) chose merely to rely on the
disputable presumption of marriage even in the face of such countervailing evidence
as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of the
surname Delgado and (2) Luis Delgados and Caridad ConcepcionsPartida de
Casamiento identifying Luis as hijo natural de Felisa Delgado (the natural child
of Felisa Delgado).
49

50

All things considered, we rule that these factors sufficiently overcame the
rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were never
married. Hence, all the children born to Felisa Delgado out of her relations with
Ramon Osorio and Lucio Campo, namely, Luis and his half-blood siblings Nazario,
Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed
Delgado, were her natural children.
51

52

Pertinent to this matter is the following observation:

Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y
would be natural brothers and sisters, but of half-blood relationship. Can they succeed each
other reciprocally?
The law prohibits reciprocal succession between illegitimate children and legitimate
children of the same parent, even though there is unquestionably a tie of blood between
them. It seems that to allow an illegitimate child to succeed ab intestato (from) another
illegitimate child begotten with a parent different from that of the former, would be
allowing the illegitimate child greater rights than a legitimate child. Notwithstanding this,
however, we submit that succession should be allowed, even when the illegitimate brothers
and sisters are only of the half-blood. The reason impelling the prohibition on reciprocal
successions between legitimate and illegitimate families does not apply to the case under
consideration. That prohibition has for its basis the difference in category between
illegitimate and legitimate relatives. There is no such difference when all the children are
illegitimate children of the same parent, even if begotten with different persons. They all
stand on the same footing before the law, just like legitimate children of half-blood relation.
We submit, therefore, that the rules regarding succession of legitimate brothers and sisters
should be applicable to them. Full blood illegitimate brothers and sisters should receive
double the portion of half-blood brothers and sisters; and if all are either of the full blood or
of the half-blood, they shall share equally.
53

Here, the above-named siblings of Josefa Delgado were related to her by full-blood,
except Luis Delgado, her half-brother. Nonetheless, since they were all illegitimate,
they may inherit from each other. Accordingly, all of them are entitled to inherit
from Josefa Delgado.
We note, however, that the petitioners before us are already the nephews, nieces,
grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the new
Civil Code, the right of representation in the collateral line takes place only in favor
of the children of brothers and sisters (nephews and nieces). Consequently, it cannot

be exercised by grandnephews and grandnieces. Therefore, the only collateral

relatives of Josefa Delgado who are entitled to partake of her intestate estate are
her brothers and sisters, or their children who were still alive at the time of her death
on September 8, 1972. They have a vested right to participate in the
inheritance. The records not being clear on this matter, it is now for the trial court
to determine who were the surviving brothers and sisters (or their children) of
Josefa Delgado at the time of her death. Together with Guillermo Rustia, they are
entitled to inherit from Josefa Delgado in accordance with Article 1001 of the new
Civil Code:
54

55

56

57

Art. 1001. Should brothers and sisters or their children survive with the widow or widower,
the latter shall be entitled to one-half of the inheritance and the brothers and sisters or
their children to the other one-half.

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not
have validly adjudicated Josefas estate all to himself. Rule 74, Section 1 of the
Rules of Court is clear. Adjudication by an heir of the decedents entire estate to
himself by means of an affidavit is allowed only if he is the sole heir to the estate:
SECTION 1. Extrajudicial settlement by agreement between heirs.If the decedent left no
will and no debts and the heirs are all of age, or the minors are represented by their judicial
or legal representatives duly authorized for the purpose, the parties may, without securing
letters of administration, divide the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds, and should they disagree, they
may do so in an ordinary action of partition. If there is only one heir, he may
adjudicate to himself the estate by means of an affidavit filed in the office of the
register of deeds. x x x (emphasis supplied)

The Lawful Heirs Of Guillermo Rustia

Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child of
Guillermo Rustia. As such, she may be entitled to successional rights only upon
proof of an admission or recognition of paternity. She, however, claimed the status
of an acknowledged illegitimate child of Guillermo Rustia only after the death of the
latter on February 28, 1974 at which time it was already the new Civil Code that
was in effect.
58

59

Under the old Civil Code (which was in force till August 29, 1950), illegitimate
children absolutely had no hereditary rights. This draconian edict was, however,
later relaxed in the new Civil Code which granted certain successional rights to
illegitimate children but only on condition that they were first recognized or
acknowledged by the parent.
Under the new law, recognition may be compulsory or voluntary. Recognition is
compulsory in any of the following cases:
60

1. (1)in cases of rape, abduction or seduction, when the period of the offense coincides
more or less with that of the conception;
2. (2)when the child is in continuous possession of status of a child of the alleged father
(or mother) by the direct acts of the latter or of his family;
61

3. (3)when the child was conceived during the time when the mother cohabited with the
supposed father;
4. (4)when the child has in his favor any evidence or proof that the defendant is his
father.
62

On the other hand, voluntary recognition may be made in the record of birth, a will,
a statement before a court of record or in any authentic writing.
63

Intervenor Guillerma sought recognition on two grounds: first, compulsory

recognition through the open and continuous possession of the status of an
illegitimate child and second, voluntary recognition through authentic writing.
There was apparently no doubt that she possessed the status of an illegitimate
child from her birth until the death of her putative father Guillermo Rustia.
However, this did not constitute acknowledgment but a mere ground by which she
could have compelled acknowledgment through the courts. Furthermore, any
(judicial) action for compulsory acknowledgment has a dual limitation: the lifetime
of the child and the lifetime of the putative parent. On the death of either, the
action for compulsory recognition can no longer be filed. In this case, intervenor
Guillermas right to claim compulsory acknowledgment prescribed upon the death of
Guillermo Rustia on February 28, 1974.
64

65

66

The claim of voluntary recognition (Guillermas second ground) must likewise

fail. An authentic writing, for purposes of voluntary recognition, is understood as a
genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This
includes a public instrument or a private writing admitted by the father to be
his. Did intervenors report card from the University of Santo Tomas and Josefa
Delgados obituary prepared by Guillermo Rustia qualify as authentic writings
under the new Civil Code? Unfortunately not. The report card of intervenor
Guillerma did not bear the signature of Guillermo Rustia. The fact that his name
appears there as intervenors parent/guardian holds no weight since he had no
participation in its preparation. Similarly, while witnesses testified that it was
Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which
was published in the Sunday Times on September 10, 1972, that published obituary
was not the authentic writing contemplated by the law. What c ould hav e b een
admitted as an authentic writing was the original manuscript of the notice, in the
handwriting of Guillermo Rustia himself and signed by him, not the newspaper
clipping of the obituary. The failure to present the original signed manuscript was
fatal to intervenors claim.
67

The same misfortune befalls theampun-ampunan, Guillermina Rustia Rustia,

who was never adopted in accordance with law. Although a petition for her adoption
was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the
latters death. We affirm the ruling of both the trial court and the Court of Appeals
holding her a legal stranger to the deceased spouses and therefore not entitled to
inherit from them ab intestato. We quote:
Adoption is a juridical act, a proceeding in rem, which [created] between two persons a
relationship similar to that which results from legitimate paternity and filiation. Only an
adoption made through the court, or in pursuance with the procedure laid down under Rule
99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is
wholly and entirely artificial. To establish the relation, the statutory requirements must be
strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is
never presumed, but must be affirmatively [proven] by the person claiming its existence.
68

Premises considered, we rule that two of the claimants to the estate of Guillermo
Rustia, namely, intervenor Guillerma Rustia and the ampun-ampunanGuillermina
Rustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new
Civil Code, if there are no descendants, ascendants, illegitimate children, or
surviving spouse, the collateral relatives shall succeed to the entire estate of the

deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining
claimants, consisting of his sisters, nieces and nephews.
69

70

Entitlement to Letters of Administration

An administrator is a person appointed by the court to administer the intestate
estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order
of preference in the appointment of an administrator:
Sec. 6. When and to whom letters of administration granted.If no executor is named in the
will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or
a person dies intestate, administration shall be granted:
1. (a)To the surviving husband or wife, as the case may be, or next of kin, or both, in
the discretion of the court, or to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent and willing to serve;
2. (b)If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow or next of
kin, neglects for thirty (30) days after the death of the person to apply for
administration or to request that the administration be granted to some other
person, it may be granted to one or more of the principal creditors, if competent and
willing to serve;
3. (c)If there is no such creditor competent and willing to serve, it may be granted to
such other person as the court may select.

In the appointment of an administrator, the principal consideration is the interest

in the estate of the one to be appointed. The order of preference does not rule out
the appointment of co-administrators, specially in cases where justice and equity
demand that opposing parties or factions be represented in the management of the
estates, a situation which obtains here.
71

72

It is in this light that we see fit to appoint joint administrators, in the persons of
Carlota Delgado Vda. de de la Rosa and a nominee of the nephews and nieces of
Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado
and Guillermo Rustia, respectively.

WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision
of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002
decision of the Court of Appeals is AFFIRMED with the following modifications:
1. 1.Guillermo Rustias June 15, 1973 affidavit of self-adjudication is hereby
ANNULLED.
2. 2.the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of
Josefa Delgado. The remaining half shall pertain to (a) the full and half-siblings of
Josefa Delgado who survived her and (b) the children of any of Josefa Delgados
full- or half-siblings who may have predeceased her, also surviving at the time of
her death. Josefa Delgados grandnephews and grandnieces are excluded from her
estate. In this connection, the trial court is hereby ordered to determine the
identities of the relatives of Josefa Delgado who are entitled to share in her estate.

3. 3.Guillermo Rustias estate (including its one-half share of Josefa Delgados estate)
shall be inherited by Marciana RustiaVda. de Damian and Hortencia Rustia Cruz
(whose respective shares shall be per capita) and the children of the late Roman
Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall
be per stirpes). Considering that Marciana Rustia Vda. de Damian and Hortencia
Rustia Cruz are now deceased, their respective shares shall pertain to their estates.
1. 4.Letters of administration over the still unsettled intestate estates of Guillermo
Rustia and Josefa Delgado shall issue to Carlota Delgado Vda. de de la Rosa and to
a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon
their qualification and filing of the requisite bond in such amount as may be
determined by the trial court.

No pronouncement as to costs.
SO ORDERED.
Puno (Chairman), Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.
Petition denied, assailed decision affirmed with modifications.
Note.The rule in proximity is a concept that favors the relatives nearest in
degree to the decedent and excludes the more distant ones except when and to the
extent that the right of representation can apply. (Bagunu vs. Piedad, 347 SCRA
571 [2000])

o0o

No. L-22469. October 23, 1978.

TOMAS CORPUS, plaintiff-appellant, vs.ADMINISTRATOR and/or EXECUTOR of

the Estate of Teodoro R. Yangco, RAFAEL CORPUS, AMALIA CORPUS, JOSE A.
V. CORPUS, RAMON L. CORPUS, ENRIQUE J. CORPUS, S. W. STAGG,
SOLEDAD ASPRER and CIPRIANO NAVARRO, defendants-appellees.
Civil Law; Wills and Succession;Probative value of wills; Authenticity of a probated will
is incontestable.Appellant Corpus assails the probative value of the will of Luis R. Yangco,
identified as Exhibit 1 herein, which he says is a mere copy of Exhibit 20, as found in the
record on appeal in Special Proceeding No. 54863. He contends that it should not prevail
over the presumption of legitimacy found in section 69, Rule 123 of the old Rules of Court
and over the statement of Samuel W. Stagg in his biography of Teodoro R. Yangco, that Luis
Rafael Yangco made a second marital venture with Victoria Obin, implying that he had a
first marital venture with Ramona Arguelles, the mother of Teodoro. These contentions
have no merit. The authenticity of the will of Luis Rafael Yangco, as reproduced in Exhibit 1
herein and as copied from Exhibit 20 in the proceeding for the probate of Teodoro R.
Yangcos will, is incontestable. The said will is part of a public or official judicial record.
Same; Same; Same; Marriages;Presumption is that man and woman deporting
themselves as husband and wife lawfully wedded and child born unto them in lawful
wedlock is considered legitimate.On the other hand, the children of Ramona Arguelles and
Tomas Corpus are presumed to be legitimate. A marriage is presumed to have taken place
between Ramona and Tomas. Semper praesumitur pro matrimonio. It is disputably
presumed that a man and woman deporting themselves as husband and wife have entered
into a lawful contract of marriage; that a child born in lawful wedlock, there being no

divorce, absolute or from bed and board, is legitimate, and that things have happened
according to the ordinary course of nature and the ordinary habits of life.
Same; Same; No

reciprocal

succession

between

legitimate

and

illegitimate

relatives;Reasons for rule.Since Teodoro R. Yangco was an acknowledged natural child

or was illegitimate and since Juanita Corpus was the legitimate child of Jose
Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no
cause of action for the recovery of the supposed hereditary share of his mother,
Juanita Corpus, as a legal heir, in Yangcos estate. Juanita Corpus was not a legal
heir of Yangco because there is no reciprocal succession between legitimate and
illegitimate relatives. The trial court did not err in dismissing the complaint of
Tomas Corpus. Article 943 of the old Civil Code provides that el hijo natural y el
legitimado no tienen derecho a suceder abmtestato a los hijoa y parientes legitimos
del padre o madre que lo haya reconocido, ni ellos al hijo natural ni al legitimado.
Article 943 prohibits all successory reciprocity mortis causa between legitimate
and illegitimate relatives (6 Sanchez Roman, Civil Code, pp. 996-997 cited in
Director of Lands vs. Aguas, 63 Phil. 279, 287. See 16 Scaevola, Codigo Civil, 4th
Ed., 455-6). x x x The rule in Article 943 is now found in article 992 of the Civil Code
which provides that an illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives of his father or mother, nor shall such children
or relatives inherit in the same manner from the illegitimate child. That rule is
based on the theory that the illegitimate child is disgracefully looked upon by the
legitimate family while the legitimate family is, in turn, hated by the illegitimate
child. The law does not recognize the blood tie and seeks to avoid further grounds of
resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6).

Same; Same; Same; Half-brothers who are legitimate had no right to succeed to the
estate of an illegitimate child under the rules of intestacy; Rule that a legitimate child cannot
succeed to the estate of an illegitimate child applicable in other cases.Under articles 944
and 945 of the Spanish Civil Code, if an acknowledged natural or legitimated child should
die without issue, either legitimate or acknowledged, the father or mother who
acknowledged such child shall succeed to its entire estate; and if both acknowledged it and
are alive, they shall inherit from it share and share alike. In default of natural ascendants,
natural and legitimated children shall be succeeded by their natural brothers and sisters in
accordance with the rules established for legitimate brothers and sisters. Hence, Teodoro
R. Yangcos half brothers on the Corpus side, who were legitimate, had no right to succeed
to his estate under the rules of in-testacy. Following the rule in article 992, formerly article
943, it was held that the legitimate relatives of the mother cannot succeed her illegitimate

child. x x x By reason of that same rule, the natural child cannot represent his natural
father in the succession to the estate of the legitimate grandparent (Llorente vs.
Rodriguez, 10 Phil. 585; Centeno vs. Centeno, 52 Phil. 322;Allarde vs. Abaya, 57 Phil. 909).
The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate
brother of her natural mother (Anuran vs. Aquino and Ortiz,38 Phil. 29).

AQUINO, J.:
Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven
years. His will dated August 29, 1934 was probated in the Court of First Instance of
Manila in Special Proceeding No. 54863. The decree of probate was affirmed in this
Courts 1941 decision inCorpus vs. Yangco, 73 Phil. 527. The complete text of the
will is quoted in that decision.
Yangco had no forced heirs. At the time of his death, his nearest relatives were
(1) his half brother, Luis R. Yangco, (2) his half sister, Paz Yangco, the wife of Miguel
Ossorio, (3) Amalia Corpus, Jose A. V. Corpus, and Ramon L. Corpus, the children
of his half brother, Pablo Corpus, and (4) Juana (Juanita) Corpus, the daughter of
his half brother Jose Corpus. Juanita died in October, 1944 at Palauig, Zambales.
Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the
widow of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had
begotten five children with Tomas Corpus, two of whom were the aforenamed Pablo
Corpus and Jose Corpus.
Pursuant to the order of the probate court, a project of partition dated November
26, 1945 was submitted by the administrator and the legatees named in the will.
That project of partition was opposed by the estate of Luis R. Yangco whose counsel
contended that an intestacy should be declared because the will does not contain an
institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented
Juanita Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was
already dead when Atty. Cruz appeared as her counsel.
Atty. Cruz alleged in his opposition that the proposed partition was not in
conformity with the will because the testator intended that the estate should be
conserved and not physically partitioned. Atty. Cruz prayed que declare que el
finado no dispuso en su testamento de sus bienes y negocios y que ha lugar a
sucession intestado con respecio a los mismos, y que seale un dia en esta causa

para la recepcion de pruebas previa a la declaracion de quienes son los herederos

legales o abintestato del difunto.
The probate court in its order of December 26, 1946 approved the project of
partition. It held that in certain clauses of the will the testator intended to conserve
his properties not in the sense of disposing of them after his death but for the
purpose of preventing that tales bienes fuesen malgastados o desfilpar rados por los
legatarios and that if the testator intended a perpetual prohibition against
alienation, that condition would be regarded como no puesta o no existente. It
concluded that no hay motivos legales o morales para que la sucession de Don
Teodoro R. Yangco sea declarada intestada. (SeeBarretto vs. Tuason, 50 Phil. 888,
which cites article 785 of the Spanish Civil Code as prohibiting perpetual entails,
andRodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546.)
From that order, Pedro Martinez, Juliana de Castro, Juanita Corpus (deceased)
and the estate of Luis R. Yangco appealed to this Court (L-1476). Those appeals
were dismissed in this Courts resolutions of October 10 and 31, 1947 after the
legatees and the appellants entered into compromise agreements. In the
compromise dated October 7, 1947 the legatees agreed to pay P35,000 to Pedro
Martinez, the heirs of Pio V. Corpus, the heirs of Isabel Corpus and the heir of
Juanita Corpus. Herein appellant Tomas Corpus signed that compromise
settlement as the sole heir of Juanita Corpus. The estate of Luis R. Yangco entered
into a similar compromise agreement. As the resolutions dismissing the appeals
became final and executory on October 14 and November 4, 1947, entries of
judgment were made on those dates.
Pursuant to the compromise agreement, Tomas Corpus signed a receipt dated
October 24, 1947 wherein ha acknowledge that he received from the Yangco estate
the sum of two thousand pesos (P2,000) as settlement in full of my share of the
compromise agreement as per understanding with Judge Roman Cruz, our attorney
in this case (Exh. D or 17).
On September 20, 1949, the legatees executed an agreement for the settlement
and physical partition of the Yangco estate. The probate court approved that
agreement and noted that the 1945 project of partition was pro tanto modified. That
did not set at rest the controvery over the Yangco estate.

On October 5, 1951, Tomas Corpus, as the sole heir of Juanita Corpus, filed an
action in the Court of First Instance of Manila to recover her supposed share in
Yangco intestate estate. He alleged in his complaint that the dispositions in
Yangcos will imposing perpetual prohibitions upon alienation rendered it void
under article 785 of the old Civil Code and that the 1949 partition is invalid and,
therefore, the decedents estate should be distributed according to the rules on
intestacy.
The trial court in its decision of July 2, 1956 dismissed the action on the grounds
of res judicata and laches. It held that the intrinsic validity of Yangcos will was
passed upon in its order dated December 26, 1946 in Special Proceeding No. 54863
approving the project of partition for the testators estate.
Tomas Corpus appealed to the Court of Appeals which in its resolution dated
January 23, 1964 in CA-G. R. No. 18720-R certified the appeal to this Court because
it involves real property valued at more than fifty thousand pesos (Sec. 17[5],
Judiciary Law before it was amended by Republic Act No. 2613).
Appellant Corpus contends in this appeal that the trial court erred in holding (1)
that Teodoro R. Yangco was a natural child, (2) that his will had been duly legalized,
and (3) that plaintiffs action is barred by res judicata and laches. In the disposition
of this appeal, it is not necessary to resolve whether Yangcos will had been duly
legalized and whether the action of Tomas Corpus is barred by res judicata and
laches. The appeal may be resolved by determining whether Juanita Corpus, the
mother of appellant Tomas Corpus, was a legal heir of Yangco. Has Tomas Corpus a
cause of action to recover his mothers supposed intestate share in Yangcos estate?
To answer that question, it is necessary to ascertain Yangcos filiation. The trial
court found that Yangco a su muerte tambien le sbrevivieron Luis y Paz
appellidados Yangco, hermanos naturales reconocidos por su padre natural Luis R.
Yangco. The basis of the trial courts conclusion that Teodoro R. Yangco was an
acknowledged natural child and not a legitimate child was the statement in the will
of his father. Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three
other children were-his acknowledged natural children. His exact words are:
Primera. Declaro que tengo cuatro hijos naturales reconocidos, llamados Teodoro, Paz,
Luisa y Luis, los cuales son mis unicos herederos forzosos. (Exh. 1 in Testate Estate of
Teodoro Yangco).

That will was attested by Rafael del Pan, Francisco Ortigas, Manuel Camus and
Florencio Gonzales Diez.
Appellant Corpus assails the probative value of the will of Luis R. Yangco,
identified as Exhibit 1 herein, which he says is a mere copy of Emhibit 20, as found
in the record on appeal in Special Proceeding No. 54863. He contends that it should
not prevail over the presumption of legitimacy found in section 69, Rule 123 of the
old Rules of Court and over the statement of Samuel W. Stagg in his biography of
Teodoro R. Yangco, that Luis Rafael Yangco made a second marital venture with
Victoria Obin, implying that he had a first marital venture with Ramona Arguelles,
the mother of Teodoro.
These contentions have no merit. The authenticity of the will of Luis Rafael
Yangco, as reproduced in Exhibit 1 herein and as copied from Exhibit 20 in the
proceeding for the probate of Teodoro R. Yangcos will, in incontestable. The said
will is part of a public or official judicial record.
On the other hand, the children of Ramona Arguelles and Tomas Corpus are
presumed to be legitimate. A marriage is presumed to have taken place between
Ramona and Tomas. Semper praesumitur pro matrimonio. It is disputably
presumed That a man and a woman deporting themselves as husband and wife
have entered into a lawful contract of marriage; that a child born in lawful
wedlock, there being no divorce, absolute or from bed and board, is legitimate, and
that things have happened according to the ordinary course of nature and the
ordinary habits of life (Sec. 5[z], [bb] and [cc], Rule 131, Rules of Court).
Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate
and since Juanita Corpus was the legitimate child of Jose Corpus, himself a
legitimate child, we hold that appellant Tomas Corpus has no cause of action for the
recovery of the supposed hereditary share of his mother, Juanita Corpus, as a legal
heir, in Yangcos estate. Juanita Corpus was not a legal heir of Yangco because there
is no reciprocal succession between legitimate and illegitimate relatives. The trial
court did not err in dismissing the complaint of Tomas Corpus.
Article 943 of the old Civil code provides that el hijo natural y el legitimado no
tienen derecho a suceder abintestato a los hijos y parientes legitimos del padre o
madre que lo haya reconocido, ni ellos al hijo natural ni al legitimado. Article 943

prohibits all successory reciprocity mortis causa between legitimate and

illegitimate relatives (6 Sanchez Roman, Civil Code, pp. 996-997 cited in Director
of Lands vs. Aguas, 63 Phil. 279, 287. See 16 Scaevola, Codigo Civil, 4th Ed., 455-6).
xxx
Appellant Corpus concedes that if Teodoro R. Yangco was a natural child, he
(Tomas Corpus) would have no legal personality to intervene in the distribution of
Yangcos estate (p. 8, appellants brief).
The rule in article 943 is now found in article 992 of the Civil Code which
provides that an illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall such children or
relatives inherit in the same manner from the illegitimate child.
That rule is based on the theory that the illegitimate child is disgracefully looked
upon by the legitimate family while the legitimate family is, in turn, hated by the
illegitimate child.
The law does not recognize the blood tie and seeks to avod further grounds of
resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6).
Under articles 944 and 945 of the Spanish Civil Code, if an acknowledged
natural or legitimated child should die without issue, either legitimate or
acknowledged, the father or mother who acknowledged such child shall succeed to
its entire estate; and if both acknowledged it and are alive, they shall inherit from it
share and share alike. In default of natural ascendants, natural and legitimated
children shall be succeeded by their natural brothers and sisters in accordance with
the rules established for legitimate brothers and sisters. Hence, Teodoro R.
Yangcos half brothers on the Corpus side, who were legitimate, had no right to
succeed to his estate under the rules of intestacy.
Following the rule in article 992, formerly article 943, it was held that the legitimate relatives of
the mother cannot succeed her illegitimate child (Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA
693. See De Guzman vs. Sevilla, 47 Phil. 991).
Where the testatrix, Rosario Fabie, was the legitimate daughter of Jose Fabie, the two
acknowledged natural children of her uncle, Ramon Fabie, her fathers brother, were held not to be
her legal heirs (Grey vs. Fabie, 88 Phil. 128).

By reason of that same rule, the natural child cannot represent his natural father in the
succession to the estate of the legitimate grandparent (Llorente vs. Rodriguez, 10 Phil. 585;Centeno
vs. Centeno, 52 Phil. 322;Allarde vs. Abaya, 57 Phil. 909). The natural daughter cannot succeed to
the estate of her deceased uncle, a legitimate brother of her natural mother (Anuran vs. Aquino and
Ortiz, 38 Phil. 29).
WHEREFORE the lower courts judgment is affirmed. No costs.
SO ORDERED.
Barredo, (Actg. Chairman),Antonio, Concepcion Jr. and Santos, JJ.,concur.
Judgment affirmed.
Notes.Section 1, Rule 73 of the Rules of Court prescribing the court where decedents estate
shall be settled, which is at the place of his residence or where the estate is located, relates to venue
and not to jurisdiction. (Fule vs. Malvar, 74 SCRA 189.)
The court with whom the petition is first filed must also first take cognizance of the settlement of
the estate in order to exercise jurisdiction over it to the exclusion of all other courts. ( Cuenco vs.
Court of Appeals, 53 SCRA 360).
A probate decree finally and definitively settles all questions concerning the capacity of the
testator and the proper execution and witnessing of his last will and testament, irrespec tive of
whether its provisions are valid and enforceable or otherwise. As such, the probate order is final and
appealable, and it is so recognized by the express provision of Section 1, Rule 109 of the Rules of
Court. (Fernandez vs. Dimagiba,21 SCRA 428).
An alleged disposal by the testator prior to his death of the properties in his will is no ground for
the dismissal of the petition for probate (Sumilang vs. Ramagosa, 21 SCRA 1369).
One who has or can have no interest in succeeding a decedent cannot oppose the probate of the
will in question. (Butiong vs. Surigao Consolidated Mining Co., 24 SCRA 550).
Collateral relatives of one who died intestate inherit only in the absence of descendants,
ascendants, and illegitimate children. Albeit the brothers and sisters can concur with the widow or
widower under Article 1101 of the Civil Code, they do not concur, but are excluded by the surviving
children, legitimate or illegitimate (Article 1003). (Cacho vs. Ulan, 13 SCRA 693.)

The legitimate relatives of the mother cannot succeed her illegitimate child. This is clear from
Article 992 of the Civil Code. (Cacho vs. Ulan, supra.)
Reasons for Article 992, Civil Code.Manresa, cited by the Supreme Court in the case of Grey vs.
Fabie, 48 Phil. 128, explains the above article as follows: Between the natural child and the
legitimate relatives of the father or mother who acknowledged it, the code denies any right of
succession. Theycannot be called relatives and they have no right to inherit. Of course, there is blood
ties, but the law does not recognize it. In this Article 943 (Art. 992 under new Civil Code) based upon
the reality of the facts and upon presumptive will of the interested parties; the natural child is
disgracefully looked down upon by the legitimate family; the legitimate family is, in turn, hated by
the natural child; the latter considers the privileged condition of the former and the resources of
which it is thereby deprived; the former, in turn, sees in the natural child nothing but the product of
sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in life; the
law does no more than recognize this truth, by avoiding further grounds of resentment. (Caguioa,
Comments and Cases on Civil Law, 1970 Edition, pp. 386-387.)

No. L-51263. February 28, 1983.

CRESENCIANO LEONARDO, petitioner, vs. COURT OF APPEALS, MARIA

CAILLES, JAMES BRACEWELL and RURAL BANK OF PARAAQUE, INC.,
respondents.
Civil Law; Persons and Family Relations;Findings of fact of Court of Appeals generally
final and conclusive upon the Supreme Court;Exceptions, not present in case at bar.
Petitioner takes issue with the appellate court on the above findings of fact, forgetting that
since, the present petition is one for review on certiorari, only questions of law may be
raised. It is a well-established rule laid down by this Court in numerous cases that findings
of facts by the Court of Appeals are, generally, final and conclusive upon this Court. The
exceptions are: (1) when the conclusion is a finding grounded entirely on speculation; (2)
when the inference made is manifestly mistaken, absurd or impossible; (3) when there is a
grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts;
and (5) when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same are contrary to the submission of both appellant and appellee. None of
the above exceptions, however, exists in the case at bar, hence, there is no reason to disturb
the findings of facts of the Court of Appeals.
Same; Same; Same; Factual finding of the Court of Appeals will not be disturbed absent
a clear showing that the finding is not supported by substantial evidence.That is likewise a
factual finding which may not be disturbed in this petition for review in the absence of a

clear showing that said finding is not supported by substantial evidence, or that there was a
grave abuse of discretion on the part of the court making the finding of fact.
Same; Same; Succession; Right of representation; An alleged grandchild born outside
wedlock cannot, by right of representation, claim a share of an estate left by an alleged
deceased great grandparent;Reason; Case at bar.Referring to the third assignment of
error, even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by
right of representation, claim a share of the estate left by the deceased Francisca Reyes
considering that, as found again by the Court of Appeals, he was born outside wedlock as
shown by the fact that when he was born on September 13, 1938, his alleged putative father
and mother were not yet married, and what is more, his alleged fathers first marriage was
still subsisting. At most, petitioner would be an illegitimate child who has no right to
inheritan intestato from the legitimate children and relatives of his father, like the deceased
Francisca Reyes. (Article 992, Civil Code of the Philippines.)

PETITION for certiorari to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Porfirio C. David for petitioner.
Marquez & Marquez for private respondent.
DE CASTRO, J.:
Petition for review on certiorari of the decision of the Court of Appeals in CA-G.R.
No. 43476-R, promulgated on February 21, 1979, reversing the judgment of the
Court of First Instance of Rizal in favor of petitioner:
1. (a)Declaring plaintiff Cresenciano Leonardo as the great grandson and heir of
deceased FRANCISCA REYES, entitled to one-half share in the estate of said
deceased, jointly with defendant Maria Cailles;
2. (b)Declaring the properties, subject of this complaint, to be the properties of the
deceased FRANCISCA REYES and not of defendants Maria Cailles and James
Bracewell;
3. (c)Declaring null and void any sale of these properties by defendant Maria Cailles in
so far as the share of Cresenciano Leonardo are affected;

4. (d)Ordering the partition within 30 days from the finality of this decision, of the
properties subject of this litigation, between defendant Maria Cailles and plaintiff
Cresenciano Leonardo, share and share alike;
5. (e)Ordering defendants Maria Cailles and James Bracewell, within 30 days from the
finality of this decision, to render an accounting of the fruits of the properties, and
30 days thereafter to pay to plaintiff Cresenciano Leonardo his one-half share
thereof with interest of 6% per annum;

6. (f)Ordering defendants Maria Cailles and James Bracewell to pay jointly and
severally plaintiff Cresenciano Leonardo the amount of P2,000.00 as attorneys fees;
1. (g)Ordering defendants to pay the costs; and
2. (h)Dismissing defendants counterclaim.

From the record, it appears that Francisca Reyes who died intestate on July 12,
1942 was survived by two (2) daughters, Maria and Silvestra Cailles, and a
grandson, Sotero Leonardo, the son of her daughter, Pascuala Cailles who
predeceased her. Sotero Leonardo died in 1944, while Silvestra Cailles died in 1949
without any issue.
On October 29, 1964, petitioner Cresenciano Leonardo, claiming to be the son of
the late Sotero Leonardo, filed a complaint for ownership of properties, sum of
money and accounting in the Court of First Instance of Rizal seeking judgment (1)
to be declared one of the lawful heirs of the deceased Francisca Reyes, entitled to
one-half share in the estate of said deceased jointly with defendant, private
respondent herein, Maria Cailles, (2) to have the properties left by said Francisca
Reyes, described in the complaint, partitioned between him and defendant Maria
Cailles, and (3) to have an accounting of all the income derived from said properties
from the time defendants took possession thereof until said accounting shall have
been made, delivering to him his share therein with legal interest.
Answering the complaint, private respondent Maria Cailles asserted exclusive
ownership over the subject properties and alleged that petitioner is an illegitimate
child who cannot succeed by right of representation. For his part, the other
defendant, private respondent James Bracewell, claimed that said properties are
now his by virtue of a valid and legal deed of sale which Maria Cailles had

subsequently executed in his favor. These properties were allegedly mortgaged to

respondent Rural Bank of Paraaque, Inc. sometime in September 1963.
After hearing on the merits, the trial court rendered judgment in favor of the
petitioner, the dispositive portion of which was earlier quoted, finding the evidence
of the private respondent insufficient to prove ownership of the properties in suit.
From said judgment, private respondents appealed to the Court of Appeals which,
as already stated, reversed the decision of the trial court, thereby dismissing
petitioners complaint. Reconsideration having been denied by the appellate court,
this petition for review was filed on the following assignment of errors:
I
RESPONDENT COURT ERRED IN HOLDING THAT THE PROPERTIES IN QUESTION
ARE THE EXCLUSIVE PROPERTIES OF PRIVATE RESPONDENTS.
II
RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER HAS NOT
ESTABLISHED HIS FILIATION.
III
RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER, AS THE GREAT
GRANDSON OF FRANCISCA REYES, HAS NO LEGAL RIGHT TO INHERIT BY
REPRESENTATION.

To begin with, the Court of Appeals found the subject properties to be the exclusive
properties of the private respondents.
There being two properties in this case both will be discussed separately, as each has its
own distinct factual setting. The first was bought in 1908 by Maria Cailles under a deed of
sale (Exh. 60), which describes it as follows:
. . . radicada en la calle Desposorio de este dicho Municipio dentro de los limites y linderos
siquientes: Por la derecha a la entrada el solar de Teodorico Reyes por la izquierda el solar de Maria
Calesa (Cailles) arriba citada por la espalda la via ferrea del Railroad Co., y la frente la dicha calle
Desposorio

After declaring it in her name, Maria Cailles paid the realty taxes starting from 1918
up to 1948. Thereafter as she and her son Narciso Bracewell, left for Nueva Ecija, Francisca
Reyes managed the property and paid the realty tax of the land. However, for unexplained
reasons, she paid and declared the same in her own name. Because of this, plaintiff decided
to run after this property, erroneously thinking that as the great grandson of Francisca
Reyes, he had some proprietary right over the same.
The second parcel on the other hand, was purchased by Maria Cailles in 1917 under a
deed of sale (Exh. 3) which describes the property as follows:
. . . una parcela de terreno destinado al beneficio de la sal, que linda por Norte con la linea Ferrea y
Salinar de Narciso Mayuga, por Este con los de Narciso Mayuga y Domingo Lozada, por Sur con los
de Domingo Lozada y Fruto Silverio y por Oeste con el de Fruto Silverio y Linea Ferrea, de una
extension superficial de 1229.00 metros cuadrados.

After declaring it in her name, Maria Cailles likewise paid the realty tax in 1917 and
continued paying the same up to 1948. Thereafter when she and her son, Narciso Bracewell,
established their residence in Nueva Ecija, Francisca Reyes administered the property and
like in the first case, declared in 1949 the property in her own name. Thinking that the
property is the property of Francisca Reyes, plaintiff filed the instant complaint, claiming a
portion thereof as the same allegedly represents the share of his father.
As earlier stated, the court a quo decided the case in favor of the plaintiff principally
because defendants evidence do not sufficiently show that the 2 properties which they
bought in 1908 and 1917, are the same as the properties sought by the plaintiff.
Carefully going over the evidence, We believe that the trial judge misinterpreted the
evidence as to the identification of the lands in question.
To begin with, the deed of sale (Exh. 60) of 1908 clearly states that the land sold to
Maria Cailles is en la calle Desposorio in Las Pias, Rizal which was bounded by adjoining
lands owned by persons living at the time, including the railroad track of the Manila
Railroad Co. (la via ferrea del Railroad Co.).
With the exception of the area which was not disclosed in the deed, the description fits
the land now being sought by the plaintiff, as this property is also located in Desposorio St.
and is bounded by the M.R.R. Co.
With these natural boundaries, there is indeed an assurance that the property
described in the deed and in the tax declaration is one and the same property.

The change of owners of the adjoining lands is immaterial since several decades have
already passed between the deed and the declaration and during that period, many changes
of abode would likely have occurred.
Besides, it is a fact that defendants have only one property in Desposorio St. and they
have paid the realty taxes of this property from May 29, 1914 up to May 28, 1948. Hence,
there is no reason to doubt that this property is the same, if not identical to the property in
Desposorio St. which is now being sought after by the plaintiff.
With respect to the other parcel which Maria Cailles bought from Tranquilino Mateo in
1917, it is true that there is no similar boundaries to be relied upon. It is however
undeniable that after declaring it in her name, Maria Cailles began paying the realty taxes
thereon on July 24, 1917 until 1948. (Reference to Exhibits omitted.)
2

Petitioner takes issue with the appellate court on the above findings of fact,
forgetting that since the present petition is one for review on certiorari, only
questions of law may be raised. It is a well-established rule laid down by this Court
in numerous cases that findings of facts by the Court of Appeals are, generally, final
and conclusive upon this Court. The exceptions are: (1) when the conclusion is a
finding grounded entirely on speculation; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4)
when the judgment is based on a misapprehension of facts; and (5) when the Court
of Appeals, in making its findings, went beyond the issues of the case and the same
are contrary to the submission of both appellant and appellee. None of the above
exceptions, however, exists in the case at bar, hence, there is no reason to disturb the
findings of facts of the Court of Appeals.
3

Anent the second assignment of error, the Court of Appeals made the following
findings:
Going to the issue of filiation, plaintiff claims that he is the son of Sotero Leonardo, the son
of one of the daughters (Pascuala) of Francisca Reyes. He further alleges that since
Pascuala predeceased Francisca Reyes, and that his father, Sotero, who subsequently died
in 1944, survived Francisca Reyes, plaintiff can consequently succeed to the estate of
Francisca Reyes by right of representation.
In support of his claim, plaintiff submitted in evidence his alleged birth certificate
showing that his father is Sotero Leonardo, married to Socorro Timbol, his alleged mother.

Since his supposed right will either rise or fall on the proper evaluation of this vital
evidence, We have minutely scrutinized the same, looking for that vital link connecting him
to the family tree of the deceased Francisca Reyes. However, this piece of evidence does not
in any way lend credence to his tale.
This is because the name of the child described in the birth certificate is not that of the
plaintiff but a certain Alfredo Leonardo who was born on September 13, 1938 to Sotero
Leonardo and Socorro Timbol. Other than his bare allegation, plaintiff did not submit any
durable evidence showing that the Alfredo Leonardo mentioned in the birth certificate is
no other than he himself. Thus, even without taking time and space to go into further
details, We may safely conclude that plaintiff failed to prove his filiation which is a
fundamental requisite in this action where he is claiming to be an heir in the inheritance in
question.
4

That is likewise a factual finding which may not be disturbed in this petition for review in the
absence of a clear showing that said finding is not supported by substantial evidence, or that there
was a grave abuse of discretion on the part of the court making the finding of fact.
Referring to the third assignment of error, even if it is true that petitioner is the child of Sotero
Leonardo, still he cannot, by right of representation, claim a share of the estate left by the deceased
Francisca Reyes considering that, as found again by the Court of Appeals, he was born outside
wedlock as shown by the fact that when he was born on September 13, 1938, his alleged putative
father and mother were not yet married, and what is more, his alleged fathers first marriage was
still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab
intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes.
(Article 992, Civil Code of the Philippines.)
WHEREFORE, the decision of the Court of Appeals sought to be reviewed in this petition is hereby
affirmed, with costs against the petitioner.
SO ORDERED.
Makasiar (Chairman),Concepcion, Jr., Guerrero and Escolin, JJ., concur.
Aquino, J., on leave.
Abad Santos, J., I concur with the observation but I would have dismissed the petition by
minute resolution for lack of merit.
Decision affirmed.

No. L-66574. June 17, 1987.

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL,

all surnamed SANTERO, petitioners, and FELIXBERTA PACURSA, guardian of
FEDERICO SANTERO, et al., vs.INTERMEDIATE APPELLATE COURT and
FELISA PAMUTI JARDIN, respondents.
Civil Law; Succession; Illegitimate child cannot inherit ab intestato from the legitimate
children and relatives of his father or mother nor shall such children or relatives inherit in
the same manner from the illegitimate childArticle 992 of the New Civil Code provides a
barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the
illegitimate child and the legitimate children and relatives of the father or mother of said
legitimate child. They may have a natural tie of blood, but this is not recognized by law for
the purposes of Art. 992. Between the legitimate family and the illegitimate family there is
presumed to be an intervening antagonism and incompatibility. The illegitimate child is
disgracefully looked down upon by the legitimate family; the family is in turn, hated by the
illegitimate child; the latter considers the privileged condition of the former, and the
resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child
nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no
more than recognize this truth, by avoiding further grounds of resentment. Thus,
petitioners herein cannot represent their father Pablo Santero in the succession of the letter
to the intestate estate of his legitimate mother Simona Pamuti Vda. de Santero, because of
the barrier provided for under Art. 992 of the New Civil Code.

PETITION to review the decision of the Intermediate Appellate Court.

The facts are stated in the opinion of the Court.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioners.
Pedro S. Sarino for respondent R.P. Jar din.
PARAS, J.:
Private respondent filed a Petition dated January 23, 1976 with the Court of First
Instance of Cavite in Sp. Proc. Case No. B-21, "In The Matter of the Intestate Estate
of the late Simona Pamuti Vda. de Santero," praying among other things, that the

corresponding letters of Administration be issued in her favor and that she be

appointed as special administratrix of the properties of the deceased Simona
Pamuti Vda. de Santero.
It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda.
de Santero who together with Felisa's mother Juliana were the only legitimate
children of the spouses Felipe Pamuti and Petronila Asuncion; 2) that Juliana
married Simon Jardin and out of their union were born Felisa Pamuti and another
child who died during infancy; 3) that Simona Pamuti Vda. de Santero is the widow
of Pascual Santero and the mother of Pablo Santero; 4) that Pablo Santero was the
only legitimate son of his parents Pascual Santero and Simona Pamuti Vda. de
Santero; 5) that Pascual Santero died in 1970; Pablo Santero in 1973 and Simona
Santero in 1976; 6) that Pablo Santero, at the time of his death was survived by his
mother Simona Santero and his six minor natural children to wit: four minor
children with Anselma Diaz and two minor children with Felixberta Pacursa.
Judge Jose Raval in his Orders dated December 1,19761 and December 9,
1976 declared Felisa Pamuti Jardin as the sole legitimate heir of Simona Pamuti
Vda. de Santero.
1

Before the trial court, there were 4 interrelated cases filed to wit:
1. "a)Sp. Proc. No. B-4is the Petition for the Letters of Administration of the
Intestate Estate of Pablo Santero;
2. "b)Sp. Proc. No. B-5is the Petition for the Letters of Administration of the
Intestate Estate of Pascual Santero;
3. "c)Sp. Proc. No. B-7is the Petition for Guardianship over the properties of an
Incompetent Person, Simona Pamuti Vda. de Santero;
4. "e)Sp. Proc. No. B-21is the Petition for Settlement of the Intestate Estate of
Simona Pamuti Vda. de Santero."

Felisa Jardin upon her Motion to Intervene in Sp. Proceedings Nos. B-4 and B-5,
was allowed to intervene in the intestate estates of Pablo Santero and Pascual
Santero by Orderof the Court dated August 24, 1977.

Petitioner Anselma Diaz, as guardian of her minor children, filed her "Opposition
and Motion to Exclude Felisa PamutiJardin dated March 13, 1980, from further
taking part or intervening in the settlement of the intestate estate of Simona
Pamuti Vda. de Santero, as well as in the intestate estate of Pascual Santero and
Pablo Santero.
Felixberta Pacursa guardian for her minor children, filed thru counsel, her
Manifestation of March 14, 1980 adopting the Opposition and Motion to Exclude
Felisa Pamuti, filed by Anselma Diaz.
On May 20, 1980, Judge Ildefonso M. Bleza issued an order excluding Felisa
Jardin "from further taking part or intervening in the settlement of the intestate
estate of Simona Pamuti Vda. de Santero, as well as in the intestate estates of
Pascual Santero and Pablo Santero and declared her to be, not an heir of the
deceased Simona Pamuti Vda. de Santero."
3

After her Motion for Reconsideration was denied by the trial court in its order
dated November 1, 1980, Felisa P. Jardin filed her appeal to the Intermediate
Appellate Court in CAG.R. No. 69814-R. A decision was rendered by the
Intermediate Appellate Court on December 14, 1983 (reversing the decision of the
trial court) the dispositive portion of which reads
4

"WHEREFORE, finding the Order appealed from not consistent with the facts and law
applicable, the same is hereby set aside and another one entered sustaining the Orders of
December 1 and 9, 1976 declaring the petitioner as the sole heir of Simona Pamuti Vda. de
Santero and ordering oppositors-appellees not to interfere in the proceeding for the
declaration of heirship in the estate of Simona Pamuti Vda. de Santero."
"Costs against the oppositors-appellees."

The Motion for Reconsideration filed by oppositors-appellees (petitioners herein)

was denied by the same respondent court in its order dated February 17, 1984
hence, the present petition for Review with the following:
ASSIGNMENT OF ERRORS
1. I.The Decision erred in ignoring the right to intestate succession of
petitioners grandchildren Santero as direct descending line (Art. 978) and/or

natural/"illegitimate children" (Art. 988) and prefering a niece, who is a collateral

relative (Art. 1003);
2. II.The Decision erred in denying the right of representation of the natural
grandchildren Santero to represent their father Pablo Santero in the succession to
the intestate estate of their grandmother Simona PamutiVda. de Santero (Art.
982);
3. III.The Decision erred in mist aking the intestate estate of the
grandmotherSimona Pamuti Vda. de Santero as the estate of "legitimate child or
relative" of Pablo Santero, her son andfather of the petitioners' grandchildren
Santero;
4. IV.The Decision erred in ruling that petitioner-appellant Felisa P. Jardin who is
a niece and therefore acollateral relative of Simona Pamuti Vda. de Santero
excludes the naturalchildren of her son Pablo Santero, who are her
direct descendants and/orgrand children;
5. V.The Decision erred in applying Art. 992, when Arts. 988, 989 and 990 are the
applicable provisions of law on intestate succession; and
6. VI.The Decision erred in considering the orders of December 1 and December 9,
1976 which are provisional and interlocutory as final and executory.

The real issue in this case may be briefly stated as followswho are the legal heirs
of Simona Pamuti Vda. de Santeroher niece Felisa Pamuti Jardin or her
grandchildren (the natural children of Pablo Santero)?
The dispute at bar refers only to the intestate estate of Simona Pamuti Vda. de
Santero and the issue here is whether oppositors-appellees (petitioners herein) as
illegitimate children of Pablo Santero could inherit from Simona Pamuti Vda. de
Santero, by right of representation of their father Pablo Santero who is a legitimate
child of Simona Pamuti Vda. de Santero.
Now then what is the appropriate law on the matter? Petitioners contend in their
pleadings that Art. 990 of the New Civil Code is the applicable law on the case. They
contend that said provision of the New Civil Code modifies the rule in Article 941
(Old Civil Code) and recognizes the right of representation (Art. 970) to
descendants, whether legitimate or illegitimate and that Art. 941, Spanish Civil

Code denied illegitimate children the right to represent their deceased parents and
inherit from their deceased grandparents, but that Rule was expressly changed
and/or amended by Art. 990 New Civil Code which expressly grants the illegitimate
children the right to represent their deceased father (Pablo Santero) in the estate of
their grandmother (Simona Pamuti)"
5

Petitioners' contention holds no water. Since the heridatary conflict refers solely
to the intestate estate of Simona Pamuti Vda. de Santero, who is the legitimate
mother of Pablo Santero, the applicable law is the provision of Art. 992 of the Civil
Code which reads as follows:
ART. 992. An illegitimate child has no right to inherit ab intestato from the legitimate
children and relatives of his father or mother; nor shall such children or relatives inherit in
the same manner from the illegitimate child. (943a)

Pablo Santero is a legitimate child, he is not an illegitimate child. On the other

hand, the oppositors (petitioners herein) are the illegitimate children of Pablo
Santero.
Article 992 of the New Civil Code provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato between the illegitimate child and the
legitimate children and relativesof the father or mother of said legitimate child.
They may have a natural tie of blood, but this is not recognized by law for the
purposes of Art. 992. Between the legitimate family and the illegitimate family
there is presumed to be an intervening antagonism and incompatibility. The
illegitimate child is disgracefully looked down upon by the legitimate family; the
family is in turn, hated by the illegitimate child; the latter considers the privileged
condition of the former, and the resources of which it is thereby deprived; the
former, in turn, sees in the illegitimate child nothing but the product of sin, palpable
evidence of a blemish broken in life; the law does no more than recognize this truth,
by avoiding further grounds of resentment.
6

Thus, petitioners herein cannot represent their father Pablo Santero in the
succession of the letter to the intestate estate of his legitimate mother Simona
Pamuti Vda. de Santero, because of the barrier provided for under Art. 992 of the
New Civil Code.

In answer to the erroneous contention of petitioners that Article 941 of the

Spanish Civil Code is changed by Article 990 of the New Civil Code, We are
reproducing herewith the Reflections of the Illustrious Hon. Justice Jose B.L. Reyes
which also finds full support from other civilists, to wit:
"In the Spanish Civil Code of 1889 the right of representation was admitted only within the
legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate
child can not inherit ab intestato from the legitimate children and relatives of his father
and mother. The Civil Code of the Philippines apparently adhered to this principle since it
reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency,
in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the
illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that
while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in
the intestate succession of the grandparent, the illegitimates of an illegitimate child can
now do so. This difference being indefensible and unwarranted, in the future revision of the
Civil Code we shall have to make a choice and decide either that the illegitimate issue
enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or
contrariwise maintain said article and modify Articles 995 and 998. The first solution would
be more in accord with an enlightened attitude vis-a-vis illegitimate children.(Reflections on
the Reform of Hereditary Succession, JOURNAL of the Integrated Bar of the Philippines,
First Quater, 1976, Volume 4, Number 1, pp. 4041).

It is therefore clear from Article 992 of the New Civil Code that the phrase
"legitimate children and relatives of his father or mother" includes Simona Pamuti
Vda. de Santero as the word "relative" includes all the kindred of the person spoken
of. The record shows that from the commencement of this case the only parties who
claimed to be the legitimate heirs of the late Simona Pamuti Vda. de Santero are
Felisa Pamuti Jardin and the six minor natural or illegitimate children of Pablo
Santero. Since petitioners herein are barred by the provisions of Article 992, the
respondent Intermediate Appellate Court did not commit any error in holding
Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late
Simona Pamuti Vda. de Santero.
7

Lastly, petitioners claim that the respondent Intermediate Appellate Court erred in
ruling that the Orders of the Court a quo dated December 1, 1976 and December 9, 1976
are final and executory. Such contention is without merit. The Hon. Judge Jose Raval in his
order dated December 1, 1976 held that the oppositors (petitioners herein) are not entitled
to intervene and hence not allowed to intervene in the proceedings. for the declaration of

the heirship in the intestate estate of Simona Pamuti Vda. de Santero. Subsequently, Judge
Jose Raval issued an order, dated December 9, 1976, which declared Felisa Pamuti-Jardin
to be the sole legitimate heir of Simona Pamuti. The said Orders were never made the
subjects of either a motion for reconsideration or a perfected appeal. Hence, said orders
which long became final and executory are already removed from the power of jurisdiction
of the lower court to decide anew. The only power retained by the lower court, after a
judgment has become final and executory is to order its execution. The respondent Court
did not err therefore in ruling that the Order of the Court a quo dated May 30, 1980
excluding Felisa Pamuti Jardin as intestate heir of the deceased Simona Pamuti Vda. de
Santero "is clearly a total reversal of an Order which has become final and executory, hence
null and void.''
WHEREFORE, this petition is hereby DISMISSED, and the assailed decision is hereby
AFFIRMED.
SO ORDERED.
Fernan (Chairman), Gutierrez, Jr., and Corts, JJ., concur.
Padilla, J., took no part; principal counsel of petitioners is related to me.
Bidin, J., no part, see footnotes 4.
Petition dismissed. Decision affirmed.
Notes.In the settlement proceedings of the estate of the deceased spouse, the entire
conjugal partnership property of the marriage and not just the one-half portion belonging to
the deceased is under administration. (Picardal vs. Lladas, 21 SCRA 1485.)
The practice in the distribution of the estates of deceased persons pursuant to the
provision of Section 1 of Rule 91 of the Rules of Court, is to assign the whole of the estate
left for distribution among the heirs in definite proportion, an aliquot part pertaining in
such of heirs.(Blas vs. Muoz-Palma, 4 SCRA 900.)

G.R. No. 66574. February 21, 1990.

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL,

all surnamed SANTERO, and FELIXBERTA PACURSA, guardian of FEDERICO
SANTERO, et al., petitioners, vs. INTERMEDIATE APPELLATE COURT and
FELISA PAMUTI JARDIN, respondents.
Wills and Succession; Right of Representation; Hereditary Rights of Illegitimate
Descendants; Right of representation, not available to illegitimate descendants of legitimate
children in the inheritance of a legitimate grandparent.Articles 902, 989, and 990 clearly
speak of successional rights of illegitimate children, which rights are transmitted to their
descendants upon their death. The descendants (of these illegitimate children) who may
inherit by virtue of the right of representation may be legitimate or illegitimate. In
whatever manner, one should not overlook the fact that the persons to be represented are
themselves illegitimate. The three named provisions are very clear on this matter. The right
of representation is not available to illegitimate descendants of legitimate children in the
inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the
illegitimate descendant of a legitimate child is entitled to represent by virtue of the
provisions of Article 982, which provides that the grandchildren and other descendants
shall inherit by right of representa-tion. Such a conclusion is erroneous. It would allow
intestate succession by an illegitimate child to the legitimate parent of his father or mother,
a situation which would set at naught the provisions of Article 992. Article 982 is
inapplicable to instant case because Article 992 prohibits absolutely a succession ab
intestato between the illegitimate child and the legitimate children and relatives of the
father or mother. It may not be amiss to state that Article 982 is the general rule and
Article 992 the exception.
Same; Same; Same; The term relatives as used in Art. 992 embraces not only
collateral relatives but all the kindred of the person spoken of.According to Prof. Balane, to
interpret the term relatives in Article 992 in a more restrictive sense than it is used and
intended is not warranted by any rule of interpretation. Besides, he further states that
when the law intends to use the term in a more restrictive sense, it qualifies the term with
the word collateral, as in Articles 1003 and 1009 of the New Civil Code. Thus, the word
relatives is a general term and when used in a statute it embraces not only collateral
relatives but also all the kindred of the person spoken of, unless the context indicates that it
was used in a more restrictive or limited sensewhich, as already discussed earlier, is not
so in the case at bar.

GUTIERREZ, JR., J., Dissenting:

Wills and Succession; Right of Representation; Rights of Illegitimate Descendants; The
barrier is between legitimate and illegitimate families; A grandparent cannot be a separate

family from her own grandchildren.But I must stress that the barrier is between the
legitimate and illegitimate families. I see no reason why we should include a grandmother
or grandfather among those where a firm wall of separation should be maintained. She
cannot be a separate family from her own grandchildren. The ancient wall was breached
by our Code Commission and Congress in Art. 902 of the Code which provides: The rights
of illegitimate children set forth in the preceding articles are transmitted upon their death
to their descendants, whether legitimate or illegitimate. (843a) The illegitimate children of
an illegitimate child have the right to represent him in the circumstances given in
preceding articles. Before the Code was amended, that right was reserved to the
illegitimate childs legitimate offspring. I find it absurd why the petitioners could have
represented their father Pablo if their grandparents Simona and Pascual had not been
legally married.
Same; Same; Same; Relatives under Art. 992 can only refer to collateral relatives, to
members of a separate group of kins but not to ones own grandparents.The adoption of a
harsh and absurd interpretation, pending an amendment of the law, does not impress me as
correct. Precisely, the word relatives in Art. 992 calls for reinterpretation because the
Code has been amended. The meaning of relatives must follow the changes in various
provisions upon which the words effectivity is dependent. My dissent from the majority
opinion is also premised on a firm belief that law is based on considerations of justice. The
law should be interpreted to accord with what appears right and just. Unless the opposite is
proved, I will always presume that a grandmother loves her grandchildrenlegitimate or
illegiti-matemore than the second cousins of said grandchildren or the parents of said
cousins. The grandmother may be angry at the indiscretions of her son but why should the
law include the innocent grandchildren as objects of that anger. Relatives can only refer to
collateral relatives, to members of a separate group of kins but not to ones own
grandparents. I, therefore, vote to grant the motion for reconsideration.

SECOND MOTION FOR RECONSIDERATION to review the decision of the then

Intermediate Appellate Court.
The facts are stated in the opinion of the Court.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioners.
Pedro S. Sarino for respondent Felisa Pamuti Jardin.
RESOLUTION
PARAS, J.:

The decision of the Second Division of this Court in the case of Anselma Diaz, et al.
vs. Intermediate Appellate Court, et al., G.R. No. 6574, promulgated June 17, 1987
declaring Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate
of the late Simona Pamuti Vda. de Santero, and its Resolution of February 24, 1988
denying the Motion for Reconsideration dated July 2, 1987, are being challenged in
this Second Motion for Reconsideration dated July 5, 1988. After the parties had
filed their respective pleadings, the Court, in a resolution dated October 27, 1988,
resolved to grant the request of the petitioners for oral argument before the court en
banc, and the case was set for hearing on November 17, 1988 to resolve the question:
Does the term relatives in Article 992 of the New Civil Code which reads:
An illegitimate child has no right to inheritab intestato from the legitimate children or
relatives of his father or mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child.

include the legitimate parents of the father or mother of the illegitimate children?
Invited to discuss as amici curiae during the hearing were the following: Justice
Jose B.L. Reyes, former Justice Minister Ricardo C. Puno, Dr. Arturo Tolentino,
former Justice Eduardo Caguioa, and Professor Ruben Balane.
The facts of the case, as synthesized in the assailed decision, are as follows:
It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero
who together with Felisas mother Juliana were the only legitimate children of the spouses
Felipe Pamuti and Petronila Asuncion; 2) that Juliana married Simon Jardin and out of
their union were born Felisa Pamuti and another child who died during infancy; 3) that
Simona Pamuti Vda. de Santero is the widow of Pascual Santero and the mother of Pablo
Santero; 4) that Pablo Santero was the only legitimate son of his parents Pascual Santero
and Simona Pamuti Vda. de Santero; 5) that Pascual Santero died in 1970; Pablo Santero in
1973 and Simona Santero in 1976; 6) that Pablo Santero, at the time of his death was
survived by his mother Simona Santero and his six minor natural children to wit: four
minor children with Anselma Diaz and two minor children with Felixberta Pacursa.
(pp. 1-2, Decision; pp. 190-191, Rollo)

Briefly stated, the real issue in the instant case is thiswho are the legal heirs of
Simona Pamuti Vda. de Santeroher niece Felisa Pamuti-Jardin or her
grandchildren (the natural children of Pablo Santero)?

The present controversy is confined solely to the intestate estate of Simona

Pamuti Vda. de Santero. In connection therewith, We are tasked with determining
anew whether petitioners as illegitimate children of Pablo Santero could inherit
from Simona Pamuti Vda. de Santero, by right of representation of their father
Pablo Santero who is a legitimate child of Simona Pamuti Vda. de Santero.
Petitioners claim that the amendment of Articles 941 and 943 of the old Civil
Code (Civil Code of Spain) by Articles 990 and 992 of the new Civil Code (Civil Code
of the Philippines) constitute a substantial and not merely a formal change, which
grants illegitimate children certain successional rights. We do not dispute the fact
that the New Civil Code has given illegitimate children successional rights, which
rights were never before enjoyed by them under the Old Civil Code. They were
during that time merely entitled to support. In fact, they are now considered as
compulsory primary heirs under Article 887 of the new Civil Code (No. 5 in the
order of intestate succession). Again, We do not deny that fact. These are only some
of the many rights granted by the new Code to illegitimate children. But that is all.
A careful evaluation of the New Civil Code provisions, especially Articles 902, 982,
989, and 990, claimed by petitioners to have conferred illegitimate children the right
to represent their parents in the inheritance of their legitimate grandparents, would
in point of fact reveal that such right to this time does not exist.
Let Us take a closer look at the above-cited provisions.
Art. 902. The rights of illegitimate children set forth in the preceding articles are
transmitted upon their death to their descendants, whether legitimate orillegitimate.
Art. 982. The grandchildren and other descendants shall inherit by right of
representation, and if any one of them should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in equal portions. (933)
Art. 989. If, together with illegitimatechildren, there should survive descendants of
another illegitimate child who is dead, the former shall succeed in their own right and the
latter by right of representation. (940a)
Art. 990. The hereditary rights granted by the two preceding articles to illegitimate
children shall be transmitted upon their death to their descendants, who shall inherit by
right of representation from their deceased grandparent. (941a) Italics for emphasis).

Articles 902, 989, and 990 clearly speak of successional rights

of illegitimatechildren, which rights are transmitted to their descendants upon their
death. The descendants (of these illegitimate children) who may inherit by virtue of
the right of representation may be legitimate or illegitimate. In whatever manner,
one should not overlook the fact that the persons to be represented are
themselves illegitimate. The three named provisions are very clear on this matter.
The right of representation is not available to illegitimate descendants
oflegitimate children in the inheritance of a legitimate grandparent. It may be
argued, as done by petitioners, that the illegitimate descendant of a legitimate child
is entitled to represent by virtue of the provisions of Article 982, which provides that
the grandchildren and other descendants shall inherit by right of representa-tion.
Such a conclusion is erroneous. It would allow intestate succession by an
illegitimate child to the legitimate parent of his father or mother, a situation which
would set at naught the provisions of Article 992. Article 982 is inapplicable to
instant case because Article 992 prohibits absolutely a succession
ab intestato between the illegitimate child and the legitimate children and relatives
of the father or mother. It may not be amiss to state that Article 982 is the general
rule and Article 992 the exception.
The rules laid down in Article 982 that grandchildren and other descendants
shall inherit by right of representation and in Article 902 that the rights of
illegitimate children x x x are transmitted upon their death to their descendants,
whether legitimate or illegitimate are subject to the limitationprescribed by Article
992 to the end that an illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother. (Amicus Curiaes Opinion
by former Justice Minister Ricardo C. Puno, p. 12)
Article 992 of the New Civil Code provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato between the illegitimate child and the
legitimate children and relatives of the father or mother of said illegitimate child.
They may have a natural tie of blood, but this is not recognized by law for the
purpose of Article 992. Between the legitimate family and the illegitimate family
there is presumed to be an intervening antagonism and incompatibility. The
illegitimate child is disgracefully looked down upon by the legitimate family; and the
family is in turn, hated by the illegitimate child; the latter considers the privileged
condition of the former, and the resources of which it is thereby deprived; the
former, in turn, sees in the illegitimate child nothing but the product of sin, palpable

evidence of a blemish broken in life; the law does no more than recognize this truth,
by avoidng further ground of resentment. (7 Manresa 110 cited in Grey v. Fabie 40
OG (First S) No. 3, p. 196).
According to petitioners, the commentaries of Manresa as above-quoted are based
on Articles 939 to 944 of the old Civil Code and are therefore inapplicable to the
New Civil Code and to the case at bar. Petitioners further argue that the consistent
doctrine adopted by this Court in the cases of Llorente vs. Rodriguez, et al., 10 Phil.,
585; Centeno vs. Centeno, 52 Phil. 322, and Oyao vs. Oyao, 94 Phil. 204, cited by
former Justice Minister Justice Puno, Justice Caguioa, and Prof. Balane, which
identically held that an illegitimate child has no right to succeed ab intestato the
legitimate father or mother of his natural parent (also a legitimate child himself), is
already abrogated by the amendments made by the New Civil Code and thus cannot
be made to apply to the instant case.
Once more, We decline to agree with petitioner. We are fully aware of certain
substantial changes in our law of succession, but there is no change whatsoever with
respect to the provision of Article 992 of the Civil Code. Otherwise, by the said
substantial change, Article 992, which was a reproduction of Article 943 of the Civil
Code of Spain, should have been suppressed or at least modified to clarify the
matters which are now the subject of the present controversy. While the New Civil
Code may have granted successional rights to illegitimate children, those articles,
however, in conjunction with Article 992, prohibit the right of representation from
being exercised where the person to be represented is a legitimate child. Needless to
say, the determining factor is the legitimacy or illegitimacy of the person to be
represented. If the person to be represented is an illegitimate child, then his
descendants, whether legitimate or illegitimate, may represent him; however, if the
person to be represented is legitimate, his illegitimate descendants cannot
represent him because the law provides that only his legitimate descendants may
exercise the right of representation by reason of the barrier imposed in Article 992.
In this wise, the commentaries of Manresa on the matter in issue, even though
based on the old Civil Code, are still very much applicable to the New Civil Code
because the amendment, although substantial, did not consist of giving illegitimate
children the right to represent their natural parents (legitimate) in the intestate
succession of their grandparents (legitimate). It is with the same line of reasoning
that the three aforecited cases may be said to be still applicable to the instant case.

Equally important are the reflections of the Illustrious Hon. Justice Jose B.L.
Reyes which also find support from other civilists. We quote:
In the Spanish Civil Code of 1889 the right of representation was admitted only within the
legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate
child can not inherit ab intestato from the legitimate children and relatives of his father and
mother. The Civil Code of the Philippines apparently adhered to this principle since it
reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency,
in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the
illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that
while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in
the intestate succession of the grandparent, the illegitimates of an illegitimate child can
now do so. This difference being indefensible and unwarranted, in the future revision of the
Civil Code we shall have to make a choice and decide either that the illegitimate issue
enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or
con-trariwise maintain said article and modify Articles 992 and 998. The first solution
would be more in accord with an enlightened attitude vis-a-vis illegitimate children.
(Reflections on the Reform of Hereditary Succession, JOURNAL of the Integrated Bar of the
Philippines, First Quarter, 1976, Volume 4, Number 1, pp. 40-41). (p. 7, Decision; p. 196,
Rollo)

It is therefore clear from Article 992 of the New Civil Code that the phrase
legitimate children and relatives of his father or mother includes Simona Pamuti
Vda. de Santero as the word relative is broad enough to comprehend all the
kindred of the person spoken of. (Comment, p. 139 Rollo citing p. 2862 Bouviers
Law Dictionary vol. II, Third Revision, Eight Edition) The record reveals that from
the commencement of this case the only parties who claimed to be the legitimate
heirs of the late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and the
six minor natural or illegitimate children of Pablo Santero. Since petitioners herein
are barred by the provisions of Article 992, the respondent Intermediate Appellate
Court did not commit any error in holding Felisa Pamuti Jardin to be the sole
legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero.
It is Our shared view that the word relatives should be construed in its general
acceptation. Amicus curiae Prof. Ruben Balane has this to say:
The term relatives, although used many times in the Code, is not defined by it. In
accordance therefore with the canons of statutory interpretation, it should be understood to
have a general and inclusive scope, inasmuch as the term is a general one.Generalia verba

sunt generaliter intelligenda. That the law does not make a distinction prevents us from
making one: Ubi lex non distinguit, nec nos distinguera debemus. Escriche, in
his Diccionario de Legislacion y Jurisprudencia defines parientes as los que estan
relacionados por los vinculos de la sangre, ya sea por proceder unos de otros, como los
descendientes y ascendientes, ya sea por proceder de una misma raiz o tronco, como los
colaterales. (cited in Scaevola, op. cit., p. 457).
(p. 377, Rollo)

According to Prof. Balane, to interpret the term relatives in Article 992 in a more
restrictive sense than it is used and intended is not warranted by any rule of
interpretation. Besides, he further states that when the law intends to use the term
in a more restrictive sense, it qualifies the term with the word collateral, as in
Articles 1003 and 1009 of the New Civil Code.
Thus, the word relatives is a general term and when used in a statute it
embraces not only collateral relatives but also all the kindred of the person spoken
of, unless the context indicates that it was used in a more restrictive or limited
sensewhich, as already discussed earlier, is not so in the case at bar.
To recapitulate, We quote this:
The lines of this distinction between legitimates and illegiti-mates, which goes back very
far in legal history, have been softened but not erased by present law. Our legislation has
not gone so far as to place legitimate and illegitimate children on exactly the same footing.
Even the Family Code of 1987 (EO 209) has not abolished the gradation between legitimate
and illegitimate children (although it has done away with the subclassification of
illegitimates into natural and spurious). It would thus be correct to say that illegitimate
children have only those rights which are expressly or clearly granted to them by law (vide
Tolentino, Civil Code of the Philippines, 1973 ed., vol. III, p. 291). (Amicus Curiaes Opinion
by Prof. Ruben Balane, p. 12).

In the light of the foregoing, We conclude that until Article 992 is suppressed or at
least amended to clarify the term relatives, there is no other alternative but to
apply the law literally. Thus, We hereby reiterate the decision of June 17, 1987 and
declare Felisa Pamuti-Jardin to be the sole heir to the intestate estate of Simona
Pamuti Vda. de Santero, to the exclusion of petitioners.

WHEREFORE, the second Motion for Reconsideration is DENIED, and the

assailed decision is hereby AFFIRMED.
SO ORDERED.
Fernan (C.J.), Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco,Corts,
Grio-Aquino, Medialdea andRegalado, JJ., concur.
Gutierrez, Jr., J., Please seedissenting opinion.
Padilla, J., No part; related to Petitioners lead counsel.
Bidin, J., No Part. I participated in the appealed decision.
Sarmiento, J., No Part, I was a lawyer of same parties in a case still pending
in the Court involving the same legal issue.
GUTIERREZ, JR., J.: Dissenting Opinion
The ponente, Mr. Justice Edgardo L. Paras, is a noted teacher of Civil Law subjects
and a well-known author of many Commentaries on the Civil Code. The amicus
curiaeformer Justice Jose B.L. Reyes, former Justice Ricardo C. Puno, former
Sena-tor Arturo Tolentino, former Justice Eduardo Caguioa, and Professor Ruben
Balanetogether with the ponente read like a veritable Whos Who in Civil Law in
the Philippines.
It is, therefore, with trepidation that I venture to cast a discordant vote on the
issue before the Court. But it is perhaps because I am not as deeply steeped in the
civil law tradition and in the usually tidy and methodical neatness characterizing
its ancient precepts that I discern a change effected by our own version of the Civil
Code. The orthodox rules which earlier inflexibly separated the legitimate from the
illegitimate families have been relaxed a little. The oppobrium cast on illegitimate
children and the disadvantages they suffer in law are no longer as overwhelming as
before. The wall is no longer as rigid as it used to be. The efforts of the Code
Commission and the Congress to make our civil law conform with the customs,
traditions, and idiosyncrasies of the Filipino people and with modern trends in
legislation and the progressive principles of law have resulted in deviations from
the strict and narrow path followed by Manresa and other early glossators. I,

therefore, do not feel bound to follow the ancient interpretations in the presence of
absurd and unjust results brought about by amendments in the new Civil Code.
We have here a case of grandchildren who cannot inherit from their direct
ascendant, their own grandmother, simply because their father (who was a
legitimate son) failed to marry their mother. There are no other direct heirs. Hence,
the properties of their grandmother goes to a collateral relativeher niece. If the
niece is no longer alive, an even more distant group of grandnieces and
grandnephews will inherit as against the grandmothers own direct flesh and blood.
As pointed out by the petitioners, the decision of the Intermediate Appellate
Court disregards the order of intestate succession in Arts. 978 to 1014 of the Civil
Code and the right of representation in Art. 970 of descendants, whether legitimate
or illegitimate as provided by Arts. 902, 993, and 995.
I agree that a clear and precise amendment is needed if collateral relatives such
as illegitimate children and legitimate uncles, aunts, or cousins or illegitimate
siblings and their legitimate half-brothers or half-sisters are to inherit from one
another. But I must stress that the barrier is between the legitimate and
illegitimate families. I see no reason why we should include a grandmother or
grandfather among those where a firm wall of separation should be maintained. She
cannot be a separate family from her own grandchildren.
The ancient wall was breached by our Code Commission and Congress in Art.
902 of the Code which provides:
The rights of illegitimate children set forth in the preceding articles are transmitted upon
their death to their descendants, whether legitimate or illegitimate. (843a)

The illegitimate children of an illegitimate child have the right to represent him in
the circumstances given in preceding articles. Before the Code was amended, that
right was reserved to the illegitimate childs legitimate offspring.
I find it absurd why the petitioners could have represented their father Pablo if
their grandparents Simona and Pascual had not been legally married. Senator
Tolentino, while supporting the majority view of this Court states:
xxx

xxx

xxx

In the present article, the Code Commission took a step forward by giving an
illegitimate child the right of representation, which he did not have under the old Code. But
in retaining without change provisions of the old Code in Article 992, it created an
absurdity and committed an injustice, because while the illegitimate descendant of an
illegitimate child can represent, the illegitimate descendant of a legitimate child cannot.
The principle that the illegitimate child should succeed by operation of law only to persons
with the same status of illegitimacy has thus been preserved. And this is unfair to the
illegitimate descendants of legitimate children. Dura lex, sed lex. (Tolentino,
Commentaries and Jurisprudence on the Civil Code of the Philip-pines, Vol. III, 1987 ed., p.
330.)

The adoption of a harsh and absurd interpretation, pending an amendment of the

law, does not impress me as correct. Precisely, the word relatives in Art. 992 calls
for reinterpretation because the Code has been amended. The meaning of relatives
must follow the changes in various provisions upon which the words effectivity is
dependent.
My dissent from the majority opinion is also premised on a firm belief that law is
based on considerations of justice. The law should be interpreted to accord with
what appears right and just. Unless the opposite is proved, I will always presume
that a grandmother loves her grandchildrenlegitimate or illegitimatemore than
the second cousins of said grandchildren or the parents of said cousins. The
grandmother may be angry at the indiscretions of her son but why should the law
include the innocent grandchildren as objects of that anger. Relatives can only
refer to collateral relatives, to members of a separate group of kins but not to ones
own grandparents.
I, therefore, vote to grant the motion for reconsideration.
Motion denied. Decision affirmed.
Notes.A person may die partly testate and partly intestate. (Rigor vs. Rigor, 89
SCRA 493.)
The principle of estoppel does not apply in probate proceedings relative to the
issue of capacity of a person to inherit. (Alsua-Betts vs. Court of Appeals,92 SCRA
332.)

Preterition annuls the institution of an heir and creates an intestate succession

but legacies and devises are to be respected if not inofficious. (Acain vs. Intermediate
Appellate Court, 155 SCRA 100.)
o0o

No. L-19281. June 30, 1965.

IN THE MATTER OF THE INTESTATE ESTATE OF PEDRO SANTILLON,
CLARO SANTILLON, petitioner-appellant, vs. PERFECTA MIRANDA, BENITO U.
MIRANDA and ROSARIO CORRALES, oppositors-appellees.
Appeals in special proceedings; Order of court determining distributive share of heirs
appealable.An order of the Court of First Instance which determines the distributive
shares of the heirs of a deceased person is appealable.
Succession; Surviving spouse concurring with a legitimate child entitled to one-half of
the intestate estate.When intestacy occurs, a surviving spouse concurring with only one
legitimate child of the deceased is entitled to one-half of the estate of the deceased spouse
under Article 996 of the Civil Code.

APPEAL from an order of the Court of First Instance of Pangasinan. Pabalan, J.

The facts are stated in the opinion of the Court.

Clodualdo P. Surio and Claro Santillon (in his own behalf) for petitionerappellant.
Patricio M. Patajo for oppositors-appellees.
BENGZON, C.J.:
This is an appeal from the order of the Court of First Instance of Pangasinan,
specifying the respective shares of the principal parties herein in the intestate
estate of Pedro Santillon.
On November 21, 1953, Santillon died without testament in Tayug, Pangasinan,
his residence, leaving one son, Claro, and his wife, Perfecta Miranda. During his
marriage, Pedro acquired several parcels of land located in that province.
About four years after his death, Claro Santillon filed a petition for letters of
administration. Opposition to said petition was entered by the widow Perfecta
Miranda and the spouses Benito U. Miranda and Rosario Corrales on the following
grounds: (a) that the properties enumerated in the petition were all conjugal, except
three parcels which Perfecta Miranda claimed to be her exclusive properties; (b)
that Perfecta Miranda by virtue of two documents had conveyed 3/4 of her undivided
share in most of the properties enumerated in the petition to said spouses Benito
and Rosario; (c) that administration of the estate was not necessary, there being a
case for partition pending; and (d) that if administration was necessary at all, the
oppositor Perfecta Miranda and not the petitioner was better qualified for the post.
It appears that subsequently, oppositor Perfecta Miranda was appointed
administratrix of the estate.
On March 22, 1961, the court appointed commissioners to draft within sixty days,
a project of partition and distribution of all the properties of the deceased Pedro
Santillon.
On April 25, 1961, Claro filed a Motion to Declare Share of Heirs and to resolve
the conflicting claims of the parties with respect to their respective rights in the
estate. Invoking Art. 892 of the New Civil Code, he insisted that after deducting 1/2
from the conjugal properties as the conjugal share of Perfecta, the remaining 1/2
must be divided as follows: 1/4 for her and 3/4 for him. Oppositor Perfecta, on the
other hand, claimed that besides her conjugal half, she was entitled under Art. 996

of the New Civil Code to another 1/2 of the remaining half. In other words, Claro
claimed 3/4 of Pedros inheritance, while Perfecta claimed 1/2.
After due notice and hearing, the court, on June 28, 1961, issued an order, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS it is hereby ruled and ordered that
in the intestate succession of the deceased Pedro Santillon, the surviving spouse Perfecta
Miranda shall inherit ONE-HALF (1/2) share and the remaining ONE-HALF (1/2) share for
the only son, Atty. Claro Santillon. This is after deducting the share of the widow as coowner of the conjugal properties, x x x.

From this order, petitioner Claro Santillon has appealed to this Court. Two
questions of law are involved. The first, raised in Perfectas Motion to Dismiss
Appeal, is whether the order of the lower court is appealable. And the second, raised
in appellants lone assignment of error, is: How shall the estate of a person who dies
intestate be divided when the only survivors are the spouse and one legitimate
child?
The First Issue:It is clear that the order of the lower court is final and,
therefore, appealable to this Court.
Under Rule 109, see 1, a person may appeal in special proceedings from an order
of the Court of First Instance where such order determines xxx the distributive
share of the estate to which such person is entitled.
The Second Issue:Petitioner rests his claim to 3/4 of his fathers estate on Art.
892 of the New Civil Code which provides that:
If only the legitimate child or descendant of the deceased survives, the widow or widower
shall be entitled to one-fourth of the hereditary estate. xxx.

As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand,
cites Art. 996 which provides:
If a widow or widower and legitimate children or descendants are left, the surviving spouse
has in the succession the same share as that of each of the children.

Replying to Perfectas claim, Claro says the article is unjust and unequitable to the
extent that it grants the widow thesame share as that of the children in intestate
succession, whereas in testate, she is given 1/4 and the only child 1/2.
Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should
control, regardless of its alleged inequity, being as it is, a provision on intestate
succession involving a surviving spouse and a legitimate child, inasmuch as in
statutory construction, the plural word children includes the singular child.
Art. 892 of the New Civil Code falls under the chapter on Testamentary
Succession; whereas Art. 996 comes under the chapter on Legal or Intestate
Succession. Such being the case, it is obvious that Claro cannot rely on Art. 892 to
support his claim to 3/4 of his fathers estate. Art. 892 merely fixes the legitime of
the surviving spouse and Art. 888 thereof, the legitime of children intestate
succession. While it may indicate the intent of the law with respect to the ideal
shares that a child and a spouse should get when they concur with each other, it
does not fix the amount of shares that such child and spouse are entitled towhen
intestacy occurs. Because if the latter happens, the pertinent provision on intestate
succession shall apply, i.e., Art. 996.
Some commentators of our New Civil Code seem to support Claros contention; at
least, his objection to fifty-fifty sharing. But others confirm the half and half idea of
the Pangasinan court.
This is, remember, intestate proceedings. In the New Civil Codes chapter on
legal or intestate succession, the only article applicable is Art. 996. Our colleague,
Mr. Justice J.B.L. Reyes, professor of Civil Law, is quoted as having expressed the
opinion that under this article, when the widow survives with only one legitimate
child, they share the estate in equal parts. Senator Tolentino in his commentaries
writes as follows:
1

One child Surviving.If there is only one legitimate child surviving with the spouse, since
they share equally, onehalf of the estate goes to the child and the other half goes to the
surviving spouse. Although the law refers to children or descendants, the rule in statutory
construction that the plural can be understood to include the singular is applicable in this
case. (Tolentino, Civil Code of the Philippines, Vol. III, p. 436.)

The theory of those holding otherwise seems to be premised on these propositions:

(a) Art. 996 speaks of children, therefore, it does not apply when there is only one
child; consequently Art. 892 (and Art. 888) should be applied, thru a process of
judicial construction and analogy; (b) Art. 996 is unjust or unfair because, whereas
in testate succession, the widow is assigned one-fourth only (Art. 892), she would get
1/2 in intestate.
A. Children.It is a maxim of statutory construction that words in plural include
the singular. So Art. 996 could or should be read (and so applied): If the widow or
widower and a legitimate child are left, the surviving spouse has the same share as
that of thechild. Indeed, if we refuse to apply the article to this case on the ground
that child is not included in children, the consequences would be tremendous,
because children will not include child in the following articles:
2

ART. 887.The following are compulsory heirs: (1) legitimate children and descendants
xxx.
ART. 888.The legitime of legitimatechildren and descendants consists of one-half of the
hereditary estate xxx.
ART. 896.Illegitimate children who may survive xxx are entitled to one-fourth of the
hereditary estate xxx. (See also Art. 901).

In fact, those who say children in Art. 996 does not include child seem to be
inconsistent when they argue from the premise that in testate succession the only
legitimate child gets one-half and the widow, one-fourth. The inconsistency is clear,
because the only legitimate child gets one-half under Art. 888, which speaks of
children, not child. So if children in Art. 888 includes child, the same
meaning should be given to Art. 996.
B. Unfairness of Art. 996.Such position, more clearly stated, is this: In testate
succession, where there is only one child of the marriage, the child gets one-half,
and the widow or widower one-fourth. But in intestate, if Art. 996 is applied now,
the child gets one-half, and the widow or widower one-half. Unfair or inequitable,
they insist.
On this point, it is not correct to assume that in testate succession the widow or
widower gets only one-fourth.She or he may get one-halfif the testator so wishes.

So, the law virtually leaves it to each of the spouses to decide (by testament,
whether his or her only child shall get more than his or her survivor).
Our conclusion (equal shares) seems a logical inference from the circumstance
that whereas Article 834 of the Spanish Civil Code, from which Art. 996 was taken,
contained two paragraphs governing two contingencies, the first, where the widow
or widower survives with legitimate children (general rule), and the second, where
the widow or widower survives with only one child (exception), Art. 996 omitted to
provide for the second situation, thereby indicating the legislators desire to
promulgate just one general rule applicable to both situations.
The resultant division may be unfair as some writers explainand this we are
not called upon to discussbut it is the clear mandate of the statute, which we are
bound to enforce.
The appealed decision is affirmed. No costs in this instance.
Concepcion, Reyes,
J.B.L.,Paredes, Dizon, Regala, Makalintal,Bengzon,
J.P., and Zaldivar, JJ., concur.
Bautista Angelo, J., took no part.
Barrera, J., is on leave.
Decision affirmed.
o0o

No. L-37365. November 29, 1977.

GAUDENCIO BICOMONG, et al., plaintiffs-appellees, vs. GERONIMO ALMANZA,

et al., defendant. FLORENTINO CARTENA, defendant-appellant.
Succession; Heirs; In the absence of descendants, ascendants, illegitimate children or a
surviving spouse, collateral relations succeed to the entire estate of the deceased; Nephews
and nieces.In the absence of descendants, ascendants, illegitimate children, or a
surviving spouse, Article 1003 of the New Civil Code provides that collateral relatives shall
succeed to the entire estate of the deceased. It appearing that the decedent died intestate
without an issue, and her husband and all her ascendants had died ahead of her, she is
succeeded by the surviving collateral relatives, namely the daughter of her sister of full
blood and the ten (10) children of her brother and two (2) sisters of half blood, in accordance
with the provision of Art. 975 of the New Civil Code. By virtue of said provision, the
aforementioned nephews and nieces are entitled to inherit in their own right. In AbellanaBacayo vs. Ferraris-Borromeo, L-19382, August 31, 1965, 14 SCRA 986 this Court held that
nephews and nieces alone do not inherit by right of representation (that is per stirpes)
unless concurring with brothers or sisters of the deceased.
Same; Same; Same; Nephews and nieces entitled to inherit in their own right; Nephew
or niece of full blood entitled to inherit share double that of the nephew or niece of half blood.
Under Art. 975, which makes no qualification as to whether the nephews or nieces are on
the maternal or paternal line and without preference as to whether their relationship to the
deceased is by whole or half blood, the sole niece of whole blood of the deceased does not
exclude the ten nephews and nieces of half blood. The only difference in their right of
succession is provided in Art. 1008, N. C. C, in relation to Article 1006 of the New Civil
Code which provisions, in effect, entitle the sole niece of full blood to a share double that of
the nephews and nieces of half blood. Such distinction between whole and half blood
relationships with the deceased has been recognized in Dionisia Padura, et al. vs. Melania
Baldovino, et al., No. L-11960, December 27, 1958, 104 Phil. 1065(unreported) and in Alviar
vs. Alviar, No. L-22402, June 30, 1969, 28 SCRA 610.

APPEAL from a decision of the Court of First Instance of Manila. J.G. Bautista,J.
The facts are stated in the opinion of the Court.

Antonio E. Lacsam & Cesar A. Azucena, Jr. for appellant.

Ricardo A. Fabros, Jr. for appellees.
GUERRERO, J.:
This is an appeal certified to this Court by the Court of Appeals in accordance with
the provisions of Sec. 17, paragraph (4) of the Judiciary Act of 1948, as amended,
since the only issue raised is the correct application of the law and jurisprudence on
the matter which is purely a legal question.
1

The following findings of fact by the Court of First Instance of Laguna and San
Pablo City in Civil Case No. SP-265, and adopted by the Court of Appeals, show
that:
Simeon Bagsic was married to Sisenanda Barcenas on June 8, 1859 (Exh. D) Of this
marriage there were born three children namely: Perpetua Bagsic (Exhibit G), Igmedia
Bagsic (Exhibit F), and Ignacio Bagsic (Exhibit H). Sisenanda Barcenas died ahead of her
husband Simeon Bagsic.
On June 3, 1885, Simeon Bagsic remarried Silvestra Glorioso (Exhibit E). Of this
second marriage were born two children, Felipa Bagsic (Exhibit J) and Maura Bagsic
(Exhibit I). Simeon Bagsic died sometime in 1901. Silvestra Glorioso also died.
Ignacio Bagsic died on April 18, 1939 (Exhibit C) leaving the plaintiff Francisca Bagsic
as his only heir. Igmedia Bagsic also died on August 19, 1944 (Exhibit B) survived by the
plaintiffs Dionisio Tolentino, Maria Tolentino and Petra Tolentino.
Perpetua Bagsic died on July 1, 1945 (Exhibit A). Surviving her are her heirs, the
plaintiffs Gaudencio Bicomong, Felicidad Bicomong, Salome Bicomong, and Gervacio
Bicomong.
Of the children of the second marriage, Maura Bagsic died also on April 14, 1952 leaving
no heir as her husband died ahead of her. Felipa Bagsic, the other daughter of the second
Geronimo Almanza and her daughter Cristeta Almanza. But five (5) months before the
present suit was filed or on July 23, 1959, Cristeta Almanza died leaving behind her
husband, the defendant herein Engracio Manese (Exhibit 1-Manese) and her father
Geronimo Almanza.
(Rollo, pp. 2-3)

The subject matter of the complaint in Civil Case No. SP-265 concerns the one-half
undivided share of Maura Bagsic in the following described five (5) parcels of land
which she inherited from her deceased mother, Silvestra Glorioso, to wit:
1. A.A parcel of land in Bo. San Ignacio, City of San Pablo, planted with 38 fruit
bearing coconut trees, with an area of 1,077, sq. m. Bounded on the N. by German
Garingan; on the E. by Juan Aliagas; on the S. by Bernandino Alina; and on the W.
by Feliciana Glorioso. Covered by Tax No. 12713 for the year 1948 in the name of
Silvestra Glorioso, now Tax No. 31232, assessed at P170.00 in the name of
defendant Geronimo Almanza;
2. B.A parcel of land, also situated in Bo. San Ignacio, City of San Pablo, planted with
fruit bearing coconut trees, with an area of 9,455 sq. m. Bounded on the N. by
Paulino Gajuco; on the E. by Felisa Gavino and German Garigan; on the S. by
Esteban Calayag; and on the W. by Laureano Ambion, Covered by Tax No. 12714
for the year 1948 in the name of defendant Geronimo Almanza;
3. C.A parcel of land situated in same Bo. San Ignacio, City of San Pablo, planted with
376 fruit bearing coconut trees and having an area of 11,739 sq. sq. m. Bounded on
the N. by Jacinto Alvero, Analceto Glorioso and Bernandino Alina; on the E. by
Bernandino Alina; on the S. by Rosendo Banaad, Jacinto Alvero and Casayan River;
and on the W. by Anacleto Glorioso. Covered by Tax No. 12715 for the year 1948 in
the name of Silvestra Glorioso, now Tax No. 31234, assessed at P2,720.00 in the
name of defendant Geronimo Almanza;

4. D.A residential lot, situated at P. Alcantara Street, Int., City of San Pablo, with an

area of 153, sq. m. Bounded on the N. by heirs of Pedro Calampiano; on the E. by

Petronilo Cartago; on the S. by Ignacio Yerro; and on the W. by Melecio Cabrera.
Covered by Tax No. 17653 for the year 1948 in the name of Silvestra Glorioso, now
Tax No. 21452, assessed at P610.00 in the name of Cristeta Almanza; and

1. E.A parcel of coconut land, situated at Bo. Buenavista, Candelaria, Quezon, planted
with 300 coconut trees fruit bearing. Area24,990 sq. m. Bounded on the N. (Ilaya)
by heirs of Pedro de Gala; on the E. by Julian Garcia; on the S. (Ibaba) by Julian
Garcia, and on the W. by Taguan River. Covered by Tax No. 21452, assessed at
P910.00.

(Record on Appeal, pp. 4-6)

Three sets of plaintiffs filed the complaint on December 1, 1959, namely: (a) the
Bicomongs, children of Perpetua Bagsic; (b) the Tolentinos, children of Igmedia
Bagsic; and (c) Francisca Bagsic, daughter of Ignacio Bagsic, in the Court of First
Instance of Laguna and San Pablo City against the defendants Geronimo Almanza
and Engracio Menese for the recovery of their lawful shares in the properties left by
Maura Bagsic.
After the death of Maura Bagsic, the above-described properties passed on to
Cristela Almanza who took charge of the administration of the same. Thereupon,
the plaintiffs approached her and requested for the partition of their aunts
properties. However, they were prevailed upon by Cristeta Almanza not to divide the
properties yet as the expenses for the last illness and burial of Maura Bagsic had
not yet been paid. Having agreed to defer the partition of the same, the plaintiffs
brought out the subject again sometime in 1959 only. This time Cristeta Almanza
acceded to the request as the debts, accordingly, had already been paid.
Unfortunately, she died without the division of the properties having been effected,
thereby leaving the possesson and administration of the same to the defendants.
After trial, the court rendered judgment, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs who are hereby
declared to be entitled to ten twenty-fourth (10/24) share on the five parcels of land in
dispute. The defendant Engracio Manese and the heirs of the deceased Geronimo Almanza,
who are represented in the instant case by the administrator Florentino Cartena, are
hereby required to pay the plaintiffs from July 23, 1959 the sum of P625.00 per annum until
the ten-twenty fourth (10/24) share on the five parcels of land are delivered to the plaintiffs,
with legal interest from the time this decision shall have become final.
With costs against the defendants.
SO ORDERED.
City of San Pablo, September 21, 1962.
(SGD) JOSE G. BAUTISTA
Judge
Record on Appeal, p. 47

From the aforesaid decision of the trial court, Florentino Cartena, the substitute
defendant for Geronimo Almanza, appealed to the Court of Appeals. The other
defendant, Engracio Manese, did not appeal and execution was issued with respect
to the parcels of land in his possession, that is, those described under Letters D and
E in the complaint. Hence, the subject matter of the case on appeal was limited to
the one-half undivided portion of only three of the five parcels of land described
under letters A, B and C in the complaint which defendant Cartena admitted to be
only in his possession.
2

On appeal, defendant-appellant Cartena contends that the provisions of Arts.

995, 1006 and 1008 of the New Civil Code, applied by the trial court in allowing
plaintiffs-appellees to succeed to the properties left by Maura Bagsic were not the
applicable provisions. He asserts that in the course of the trial of the case in the
lower court, plaintiffs requested defendants to admit that Felipa Bagsic, the sole
sister of full blood of Maura Bagsic, died on May 9, 1955. Since Maura Bagsic died
on April 14, 1952, Felipa succeeded to Mauras estate. In support thereof, he cites
Art. 1004 of the New Civil Code which provides that should the only survivors be
brothers and sisters of the full blood, they shall inherit in equal shares, and he
concludes with the rule that the relatives nearest in degree excludes the more
distant ones. (Art. 962, New Civil Code)
On the other hand, plaintiffs-appellees claim that the date of death of Felipa
Bagsic was not raised as an issue in the trial court. It was even the subject of
stipulation of the parties as clearly shown in the transcript of the stenographic
notes that Felipa Bagsic died on May 9, 1945.
3

The Court of Appeals ruled that the facts of the case have been duly established
in the trial court and that the only issue left for determination is a purely legal
question involving the correct application of the law and jurisprudence on the
matter, hence the appellate court certified this case to Us.
We hold that the provisions of Art. 975, 1006 and 1008 of the New Civil Code are
applicable to the admitted facts of the case at bar. These Articles provide:
Art. 975. When children of one or more brothers or sisters of the deceased survive, they
shall inherit from the latter by representation, if they survive with their uncles or aunts.
But if they alone survive, they shall inherit in equal portions.

Art. 1006. Should brothers and sisters of the full blood survive together with brothers
and sisters of the half blood, the former shall be entitled to a share double that of the
latter.
Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or
per stirpes, in accordance with the rules laid down for brothers and sisters of the full blood.

In the absence of descendants, ascendants, illegitimate children, or a surviving

spouse, Article 1003 of the New Civil Code provides that collateral relatives shall
succeed to the entire estate of the deceased. It appearing that Maura Bagsic died
intestate without an issue, and her husband and all her ascendants had died ahead
of her, she is succeeded by the surviving collateral relatives, namely the daughter of
her sister of full blood and the ten (10) children of her brother and two (2) sisters of
half blood, in accordance with the provision of Art. 975 of the New Civil Code.
By virtue of said provision, the aforementioned nephews and nieces are entitled
to inherit in their own right. InAbellana-Bacayo vs. Ferraris-Borromeo, L-19382,
August 31, 1965, 14 SCRA 986,this Court held that nephews and nieces alone do
not inherit by right of representation (that is per stirpes) unless concurring with
brothers or sisters of the deceased.
Under the same provision, Art. 975, which makes no qualification as to whether the
nephews or nieces are on the maternal or paternal line and without preference as to
whether their relationship to the deceased is by whole or half blood, the sole niece of whole
blood of the deceased does not exclude the ten nephews and nieces of half blood. The only
difference in their right of succession is provided in Art. 1008, N.C.C., in relation to Article
1006 of the New Civil Code (supra), which provisions, in effect, entitle the sole niece of full
blood to a share double that of the nephews and nieces of half blood. Such distinction
between whole and half blood relationships with the deceased has been recognized
in Dionisia Padura, et al. vs. Melania Baldovino, et al., No. L-11960, December 27,
1958, 104 Phil. 1065(unreported) and in Alviar vs. Alviar, No. L-22402, June 30, 1969, 28
SCRA 610).
The contention of the appellant that Maura Bagsic should be succeeded by Felipa Bagsic, her
sister of full blood, to the exclusion of the nephews and nieces of half blood citing Art. 1004, N.C.C., is
unmeritorious and erroneous for it is based on an erroneous factual assumption, that is, that Felipa
Bagsic died in 1955, which as indicated here before, is not true as she died on May 9, 1945, thus she
predeceased her sister Maura Bagsic.

We find the judgment of the trial court to be in consonance with law and jurisprudence.
ACCORDINGLY, the judgment of the trial court is hereby affirmed.
No costs.
Teehankee (Chairman), Makasiar,Muoz Palma, Martin and Fernandez,JJ., concur.
Judgment affirmed.
Notes.In an intestate succession, a grandniece of the deceased cannot participate with a niece
in the inheritance because the latter being a nearer relative, the more distant grandniece is
excluded. Such being the case, the partition is void with respect to the grandniece. (De los Santos vs.
De la Cruz, 37 SCRA 555).
Under Article 343 of the new Civil Code, an adopted child surviving with legitimate parents of
the deceased adopter, has the same successional rights as an acknowledged natural child, which is
comprehended in the term illigitimate children. Consequently, the respective charges of the
surviving spouse, ascendant and adopted child should be determined by Article 1000 of the Code
which reads: If the legitimate ascendants, surviving spouse and illegitimate children are left, the
ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided
between the surviving spouse and the illegitimate children so that such widow or widower shall have
one-fourth of the estate, the illegitimate children the other fourth. (Del Rosario vs. Conanan, 76
SCRA 136).
A decedents uncles and aunts may not succeed ab intesto so long as nephews and nieces of the
decedent survive and are willing and qualified to succeed. (Abellana-Bacayo vs. Ferraris-Borromeo,14
SCRA 986).
Brothers and sisters of full blood do not exclude those of half-blood in the right to the succession,
otherwise, there would be no occasion for the concurrence of both classes and the application of
Article 1006 of the new Civil Code in relation to Articles 1004 and 1003. (Alviar vs. Alviar, 28 SCRA
610).

No. L-19382. August 31, 1965.

IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELODIAFERRARIS.

FILOMENA ABELLANA DE BACAYO, petitioner-appellant, vs. GAUDENCIA

FERRARIS DE BORROMEO, CATALINA FERRARIS DE VILLEGAS, JUANITO
FERRARIS and CONCHITA FERRARIS, oppositors-appellees.
Succession; Intestacy; Collateral relatives excluded by nephews and nieces.A
decedents uncles and aunts may not succeedab intestato so long as nephews and nieces of
the decedent survive and are willing and qualified to succeed.
Same; Same; When collaterals entitled to succession.The absence of brothers, sisters,
nephews and nieces of the decedent is a precondition to the other collaterals (uncles,
cousins, etc.) being called to the succession. (Art. 1009, Civil Code)
Same; Same; Degree of relationship of collateral relatives to the deceased.An aunt of
the deceased is as far distant as the nephews from the decedent (three degrees) since in the
collateral line to which both kinds of relatives belong, degrees are counted by first
ascending to the common ancestor and then descending to the heir (Civil Code, Art. 966).
Same; Same; When nephews and nieces inherit by right of representation.Nephews
and nieces alone do not inherit by right of representation (i.e., per stirpes) unless
concurring with brothers or sisters of the deceased.

DIRECT APPEAL from a resolution and an order of the Court of First Instance of
Cebu.
The facts are stated in the opinion of the Court.
Mateo C. Bacalso and C. Kintanarfor petitioner-appellant.
Gaudioso Sosmea and C. Tomakinfor oppositors-appellees.
REYES, J.B.L., J.:
This is a paupers appeal, directly brought to this Court on points of law, from a
resolution, dated September 20, 1961, excluding petitioner-appellant herein,
Filomena Abeliana de Bacayo, as heir in the summary settlement of the estate of
Melodia Ferraris, Special Proceeding No. 2177-R of the Court of First Instance of
Cebu, Third Branch, as well as from the order, dated October 16, 1961, denying a
motion to reconsider said resolution.
The facts of this case are not disputed by the parties.

Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to
Intramuros, Manila. She was known to have resided there continuously until 1944.
Thereafter, up to the filing on December 22, 1960 of the petition for the summary
settlement of her estate, she has not been heard of and her whereabouts are still
unknown. More than ten (10) years having elapsed since the last time she was
known to be alive, she was declared presumptively dead for purposes of opening her
succession and distributing her estate among her heirs.
Melodia Ferraris left properties in Cebu City, consisting of one-third (1/3) share
in the estate of her aunt, Rosa Ferraris, valued at P6,000.00, more or less, and
which was adjudicated to her in Special Proceeding No. 13-V of the same court.
The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or
spouse, but was survived only by collateral relatives, namely, Filomena Abellana de
Bacayo, an aunt and half-sister of decedents father, Anacleto Ferraris; and by
Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris, her nieces and
nephew, who were the children of Melodias only brother of full blood, Arturo
Ferraris, who pre-deceased her (the decedent). These two classes of heirs claim to be
the nearest intestate heirs and seek to participate in the estate of said Melodia
Ferraris.
The following diagram will help illustrate the degree of relationship of the
contending parties to said Melodia Ferraris:
The sole issue to be resolved in this case is: Who should inherit the intestate
estate of a deceased person when he or she is survived only by collateral relatives, to
wit: an aunt and the children of a brother who predeceased him or her? Otherwise,
will the aunt concur with the children of the decedents brother in the inheritance or
will the former be excluded by the latter?
The trial court ruled that the oppositors-appellees, as children of the only
predeceased brother of the decedent, exclude the aunt (petitioner-appellant) of the
same decedent, reasoning out that the former are nearer in degree (two degrees)
than the latter since nieces and nephews succeed by right of representation, while
petitioner-appellant is three degrees distant from the decedent, and that other
collateral relatives are excluded by brothers or sisters, or children of brothers or
sisters of the decedent in accordance with article 1009 of the New Civil Code.

Against the above ruling, petitioner-appellant contends in the present appeal that
she is of the same or equal degree of relationship as the oppositors-appellees, three
degrees removed from the decedent; and that under article 975 of the New Civil
Code no right of representation could take place when the nieces and nephew of the
decedent do not concur with an uncle or aunt, as in the case at bar, but rather the
former succeed in their own right.
We agree with appellants that as an aunt of the deceased, she is as far distant as
the nephews from the decedent (three degrees) since in the collateral line to which
both kinds of relatives belong degrees are counted by first ascending to the common
ancestor and then descending to the heir (Civil Cede, Art. 966). Appellant is
likewise right in her contention that nephews and nieces alone do not inherit by
right of representation (i.e., per stirpes) unless concurring with brothers or sisters of
the deceased, as provided expressly by Article 975:
ART. 975. When children of one or more brothers or sisters of the deceased survive, they
shall inherit from the latter by representation, if they survive with their uncles or aunts,
But if they alone survive, they shall inherit in equal portions. Nevertheless, the trial court
was correct when it held that, in case of intestacy, nephews and nieces of the de
cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession.
This is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the
Philippines, that provided as follows:
ART. 1001. Should brothers and sisters or their children survive with the widow or
widower, the latter shall be entitled to one-half of the inheritance and the brothers and
sisters or their children to the other half.
ART. 1004. Should the only survivors be brothers and sisters of the full blood, they shall
inherit in equal shares.
ART. 1005. Should brothers and sisters survive together with nephews and nieces, who
are the children of the decedents brothers and sisters of the full blood, the former shall
inherit per capita, and the latterper stirpes.
ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.

Under the last article (1009), the absence of brothers, sisters, nephews and nieces of
the decedent is a precondition to the other collaterals (uncles, cousins, etc) being
called to the succession. This was also and more clearly the case under the Spanish
Civil Code of 1889, that immediately preceded the Civil Code now in force (R.A.
386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows:
ART. 952. In the absence of brothers or sisters and of nephews or nieces, children of the
former, whether of the whole blood or not, the surviving spouse, if not separated by a final
decree of divorce, shall succeed to the entire estate of the deceased.
ART. 954. Should there be neither brothers or sisters, nor children of brothers or sisters,
nor a surviving spouse, the other collateral relatives, shall succeed to the estate of deceased.
The latter shall succeed without distinction of lines or preference among them by reason
of the whole blood.

It will be seen that under the preceding articles, brothers and sisters and nephews
and nieces inherited ab intestato ahead of the surviving spouse, while other
collaterals succeeded onlyafter the widower or widow. The present Civil Code of the
Philippines merely placed the spouse on a par with the nephews and nieces and
brothers and sisters of the deceased, but without altering the preferred position of
the latter vis-a-vis the other collaterals.
Appellants quote paragraph 2 of Tolentinos commentaries to Article 1009 of the
present Civil Code as declaring that Article 1009 does not establish a rule of
preference. Which is true as to other collaterals, since preference among them is
according to their proximity to the decedent, as established by Article 962,
paragraph 1.
ART. 962. In every inheritance, the relative nearest in degree excludes the more distant
ones, saving the right of representation when it properly takes place.

But Tolentino does not state that nephews and nieces concur with other collaterals
of equal degree. On the contrary, in the first paragrah of his commentaries to
Article 1009 (Vol. 11, p. 439) (which counsel for appellants had unethically omitted
to quote), Tolentino expressly states:
Other collaterals.The last of the relatives of the decedent to succeed in intestate
succession are the collaterals other than brothers or sisters or children of brothers or

sisters. They are, however, limited to relatives within the fifth degree. Beyond this, we can
safely say, there is hardly any affection to merit the succession of collaterals. Under the law,
therefore, relatives beyond the fifth degree are no longer considered as relatives, for
successional purpose?.
Article 1009 does not state any order of preference. Howver, this article should be
understood in connection with the general rule that the nearest relatives exclude the
farther. Collaterals of the same degree inherit in equal parts, there being no right of
representation. They succeed without distinction of lines or preference among them on
account of the whole blood relationship. (Italics supplied)

We, therefore, hold, and so rule, that under our laws of succession, a decedents
uncles and aunts may not succeed ab intestato so long as nephews and nieces of the
decedent survive and are willing and qualified to succeed. The decision appealed
from, in so far as it conforms to this rule, is hereby affirmed. No costs.
Bengzon,
C.J., Concepcion, Dizon,Regala, Makalintal, Bengzon,
J.P., andZaldivar, JJ., concur.
Bautista Angelo, J., took no part.
Decision affirmed.
o0o

No. L-18753. March 26, 1965.

VICENTE B. TEOTICO, petitioner-appellant, vs. ANA DEL VAL, ETC., oppositorappellant.
Settlement of decedents estate; Probate Proceedings; Only an interested party may
intervene.In order that a person may be allowed to intervene in a probate proceeding he
must have an interest in the estate, or in the will, or in the property to be effected by it
either as an executor or as a claimant of the tate, and an interested party has been defined
as one who would be benefited by the estate like a creditor.
Same; Same; Oppositor who would not benefit under the will nor as legal heir cannot
intervene in proceedings.Where under the terms of the will an oppositor has no interest in
the estate either as heir, executor or administrator, nor does she have any claim to any
property affected by the will, nor would she acquire any interest in any portion of the estate
as legal heir if the will were denied probate, it is held that said oppositor cannot intervene
in the probate proceedings.
Same; Same; Relationship by adoption does not extend to relatives of adopting parent or
of adopted child.Under our law the relationship established by adoption is limited solely
to the adopter and the adopted and does not extend to the relatives of the adopting parents
or of the adopted child except only as expressly provided for by law. Hence, no relationship is
created between the adopted and the collaterals of the adopting parents. As a consequence,
the adopted is an heir of the adopter but not of the relatives of the adopter.
Same; Improper pressure on testatrix;Burden of proof on person challenging will.The
exercise of improper pressure and undue influence must be supported by substantial
evidence and must be of a kind that would overpower and subjugate the mind of the
testatrix as to destroy her free agency and make her express the will of another rather than
her own (Goso v. Deza, 42 O.G. 596). The burden of proof is on the person challenging the
will that such influence was exerted at the time of its execution.
Same; Question of intrinsic validity of provisions of will cannot be entertained in
probate proceedings.Opposition to the intrinsic validity or legality of the provisions of the

will cannot be entertained in probate proceedings because its only purpose is merely to
determine if the will has been executed in accordance with the requirements of the law.

APPEAL from a decision of the Court of First Instance of Manila.

The facts are stated in the opinion of the Court.
Antonio Gonzales for petitioner-appellant.
J. C. Zulueta, G. D. David & N. J. Quisumbing for oppositor-appellant.
BAUTISTA ANGELO, J.:
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of
Manila leaving properties worth P600,000.00. She left a will written in Spanish
which she executed at her residence at No. 2 Legarda St., Quiapo, Manila. She
affixed her signature at the bottom of the will and on the left margin of each and
every page thereof in the presence of Pilar Borja, Pilar C. Sanchez, and Modesto
Formilleza, who in turn affixed their signatures below the attestation clause and on
the left margin of each and every page of the will in the presence of the testatrix and
of each other. Said will was acknowledged before Notary Public Niceforo S. Agaton
by the testatrix and her witnesses.
In said will the testatrix made the following preliminary statement: that she was
possessed of the full use of her mental faculties; that she was free from illegal
pressure or influence of any kind from the beneficiaries of the will and from any
influence of fear or threat; that she freely and spontaneously executed said will and
that she had neither ascendants nor descendants of any kind such that she could
freely dispose of all her estate.
Among the many legacies and devises made in the will was one of P20,000.00 to
Rene A. Teotico, married to the testatrixs niece named Josefina Mortera. To said
spouses the testatrix left the usufruct of her interest in the Calvo building, while
the naked ownership thereof she left in equal parts to her grandchildren who are
the legitimate children of said spouses. The testatrix also instituted Josefina
Mortera as her sole and universal heir to all the remainder of her properties not
otherwise disposed of in the will.

On July 17, 1955, Vicente B. Teotico filed a petition for the probate of the will
before the Court of First Instance of Manila which was set for hearing on September
3, 1955 after the requisite publication and service to all parties concerned.
Ana del Val Chan, claiming to be an adopted child of Francisca Mortera, a
deceased sister of the testatrix, as well as an acknowledged natural child of Jose
Mortera, a deceased brother of the same testatrix, filed on September 2, 1955 an
opposition to the probate of the will alleging the following grounds: (1) said will was
not executed as required by law; (2) the testatrix was physically and mentally
incapable to execute the will at the time of its execution; and (3) the will was
executed under duress, threat or influence of fear.
Vicente B. Teotico, filed a motion to dismiss the opposition alleging that the
oppositor had no legal personality to intervene. The probate court, after due
hearing, allowed the oppositor to intervene as an adopted child of Francisca
Mortera, and on June 17, 1959, the oppositor amended her opposition by alleging
the additional ground that the will is inoperative as to the share of Dr. Rene Teotico
because the latter was the physician who took care of the testatrix during her last
illness.
After the parties had presented their evidence, the probate court rendered its
decision on November 10, 1960, admitting the will to probate but declaring the
disposition made in favor of Dr. Rene Teotico void with the statement that the
portion to be vacated by the annulment should pass to the testatrixs heirs by way of
intestate succession.
Petitioner Teotico, together with the universal heir Josefina Mortera, filed a
motion for reconsideration of that part of the decision which declares the portion of
the estate to be vacated by the nullity of the legacy made to Dr. Rene Teotico as
passing to the legal heirs, while the oppositor filed also a motion for reconsideration
of the portion of the judgment which decrees the probate of the will. On his part, Dr.
Rene Teotico requested leave to intervene and to file a motion for reconsideration
with regard to that portion of the decision which nullified the legacy made in his
favor.
The motions for reconsideration above adverted to having been denied, both
petitioner and oppositor appealed from the decision, the former from that portion

which nullifies the legacy in favor of Dr. Rene Teotico and declares the vacated
portion as subject of succession in favor of the legal heirs, and the latter from that
portion which admits the will to probate. And in this instance both petitioner and
oppositor assign several errors which, stripped of non-essentials, may be boiled
down to the following: (1) Has oppositor Ana del Val Chan the right to intervene in
this proceeding?; (2) Has the will in question been duly admitted to probate?; (3) Did
the probate court commit an error in passing on the intrinsic validity of the
provisions of the will and in determining who should inherit the portion to be
vacated by the nullification of the legacy made in favor of Dr. Rene Teotico?
These issues will be discussed separately.
1. 1.It is a well-settled rule that in order that a person may be allowed to intervene in a
probate proceeding he must have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of the estate (Ngo
The Hua v. Chung Kiat Hua, et al., L-17091, September 30, 1963); and an
interested party has been defined as one who would be benefited by the estate such
as an heir or one who has a claim against the estate like a creditor (Idem). On the
other hand, in Saguinsin v. Lindayag, et al., L-17750, December 17, 1962, this
Court said:
According to Section 2, Rule 80 of the Rules of Court, a petition for letters of
administration must be filed by an interested person. An interested party has been defined
in this connection as one who would be benefited by the estate, such as an heir, or one who
has a claim against the estate, such as a creditor (Intestate Estate of Julio Magbanwa 40
O.G. 1171). And it is well settled in this jurisdiction that in civil actions as well as special
proceedings, the interest required in order that a person may be a party thereto must be
material and direct, and not merely indirect or contingent (Trillana vs. Crisostomo. G.R. No.
L-3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil. 311).

The question now may be asked: Has oppositor any interest in any of the provisions
of the will, and, in the negative, would she acquire any right to the estate in the
event that the will is denied probate?
Under the terms of the will, oppositor has no right to intervene because she has
no interest in the estate either as heir, executor, or administrator, nor does she have
any claim to any property affected by the will, because it nowhere appears therein
any provision designating her as heir, legatee or devisee of any portion of the estate.
She has also no interest in the will either as administratrix or executrix. Neither

has she any claim against any portion of the estate because she is not a co-owner
thereof, and while she previously had an interest in the Calvo building located in
Escolta, she had already disposed of it long before the execution of the will.
In the supposition that, the will is denied probate, would the oppositor acquire
any interest in any portion of the estate left by the testatrix? She would acquire
such right only if she were a legal heir of the deceased, but she is not under our
Civil Code. It is true that oppositor claims to be an acknowledged natural child of
Jose Mortera, a deceased brother of the deceased, and also an adopted daughter of
Francisca Mortera, a deceased sister of the testatrix, but such claim cannot give her
any comfort for, even if it be true, the law does not give her any right to succeed to
the estate of the deceased sister of both Jose Mortera and Francisca Mortera. And
this is so because being an illegitimate child she is prohibited by law from
succeeding to the legitimate relatives of her natural father. Thus, Article 992 of our
Civil Code provides: An illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives of his father or mother; x x x. And the
philosophy behind this provision is well expressed in Grey v. Fabie, 68 Phil. 128, as
follows:
Between the natural child and the legitimate relatives of the father or mother who
acknowledged it, the Code denies any right of succession. They cannot be called relatives
and they have no right to inherit. Of course, there is a blood tie, but the law does not
recognize it. On this, article 943 is based upon the reality of the facts and upon the
presumption will of the interested parties; the natural child is disgracefully looked down
upon by the legitimate family; the legitimate family is, in turn, hated by the natural child;
the latter considers the privileged condition of the former and the resources of which it is
thereby deprived; the former, in turn, sees in the natural child nothing but the product of
sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in
life; the law does no more than recognize this truth, by avoiding further grounds of
resentment. (7 Manresa, 3d., p. 110.)

The oppositor cannot also derive comfort from the fact that she is an adopted child
of Francisca Mortera because under our law the relationship established by
adoption is limited solely to the adopter and the adopted and does not extend to the
relatives of the adopting parents or of the adopted child except only as expressly
provided for by law. Hence, no relationship is created between the adopted and the
collaterals of the adopting parents. As a consequence, the adopted is an heir of the
adopter but not of the relatives of the adopter.

The relationship established by the adoption, however, is limited to the adopting parent,
and does not extend to his other relatives, except as expressly provided by law. Thus, the
adopted child cannot be considered as a relative of the ascendants and collaterals of the
adopting parents, nor of the legitimate children which they may have after the adoption,
except that the law imposes certain impediments to marriage by reason of adoption. Neither
are the children of the adopted considered as descendants of the adopter. The relationship
created is exclusively between the adopter and the adopted, and does not extend to the
relatives of either. (Tolentino, Civil Code of the Philippines, Vol. 1, p. 652)
Relationship by adoption is limited to adopter and adopted, and does not extend to other
members of the family of either; but the adopted is prohibited to marry the children of the
adopter to avoid scandal. (An Outline of Philippine Civil Law by Justice Jose B. L. Reyes
and Ricardo C. Puno, Vol. 1, p. 313; See also Caguioa, Comments and Cases on Civil
Law 1955, Vol. 1, pp. 312-313; Paras, Civil Code of the Philippines, 1959 ed., Vol. 1, p. 515)

It thus appears that the oppositor has no right to intervene either as testamentary
or as legal heir in this probate proceeding contrary to the ruling of the court a quo.
1. 2.The next question to be determined is whether the will Exhibit A was duly
admitted to probate. Oppositor claims that the same should not have been admitted
not only because it was not properly attested to but also because it was procured
thru pressure and influence and the testatrix affixed her signature by mistake
believing that it contained her true intent.

The claim that the will was not properly attested to is contradicted by the evidence
of record. In this respect it is fit that we state briefly the declarations of the
instrumental witnesses.
Pilar Borja testified that the testatrix was in perfect state of health at the time
she executed the will for she carried her conversation with her intelligently; that the
testatrix signed immediately above the attestation clause and on each and every
page thereof at the left-hand margin in the presence of the three instrumental
witnesses and the notary public; that it was the testatrix herself who asked her and
the other witnesses to act as such; and that the testatrix was the first one to sign
and later she gave the will to the witnesses who read and signed it.
Pilar G. Sanchez also testified that she knew the testatrix since 1945; that it was
the testatrix herself who asked her to be a witness to the will; that the testatrix was
the first one to sign and she gave the will later to the witnesses to sign and

afterwards she gave it to the notary public; that on the day of the execution of the
will the testatrix was in the best of health.
Modesto Formilleza also testified that he was asked by the testatrix to be one of
the witnesses to the will; that he read and understood the attestation clause before
he signed the document, and all the witnesses spoke either in Spanish or in
Tagalog. He finally said that the instrumental witnesses and the testatrix signed
the will at the same time and place and identified their signatures.
This evidence which has not been successfully refuted proves conclusively that
the will was duly executed because it was signed by the testatrix and her
instrumental witnesses and the notary public in the manner provided for by law.
The claim that the will was procured by improper pressure and influence is also
belied by the evidence. On this point the court a quo made the following observation:
The circumstance that the testatrix was then living under the same roof with Dr. Rene
Teotico is no proof adequate in law to sustain the conclusion that there was improper
pressure and undue influence. Nor is the alleged fact of isolation of the testatrix from the
oppositor and her witnesses, for their supposed failure to see personally the testatrix,
attributable to the vehemence of Dr. Rene Teotico, to exclude visitors, took place years after
the execution of the will on May 17, 1951. Although those facts may have some weight to
support the theory of the oppositor, yet they must perforce yield to the weightier fact that
nothing could have prevented the testatrix, had she really wanted to, from subsequently
revoking her 1951 will if it did not in fact reflect and express her own testamentary
dispositions. For, as testified to by the oppositor and her witnesses, the testatrix was often
seen at the Escolta, in Quiapo and Sta. Cruz, Manila, walking and accompanied by no one.
In fact, on different occasions, each of them was able to talk with her.

We have examined the evidence on the matter and we are fully in accord with the
foregoing observation. Moreover, the mere claim that Josefina Mortera and her
husband Rene Teotico had the opportunity to exert pressure on the testatrix simply
because she lived in their house several years prior to the execution of the will and
that she was old and suffering from hypertension in that she was virtually isolated
from her friends for several years prior to her death is insufficient to disprove what
the instrumental witnesses had testified that the testatrix freely and voluntarily
and with full consciousness of the solemnity of the occasion executed the will under
consideration. The exercise of improper pressure and undue influence must be

supported by substantial evidence and must be of a kind that would overpower and
subjugate the mind of the testatrix as to destroy her free agency and make her
express the will of another rather than her own (Coso v. Deza, 42 O.G. 596). The
burden is on the person challenging the will that such influence was exerted at the
time of its execution, a matter which here was not done, for the evidence presented
not only is insufficient but was disproved by the testimony of the instrumental
witnesses.
1. 3.The question of whether the probate court could determine the intrinsic validity of
the provisions of a will has been decided by this Court in a long line of decisions
among which the following may be cited:
Opposition to the intrinsic validity or legality of the provisions of the will cannot be
entertained in Probate proceeding because its only purpose is merely to determine if the
will has been executed in accordance with the requirements of the law. (Palacios v.
Palacios, 58 O.G. 220)
x x x The authentication of a will decides no other questions than such as touch upon
the capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of wills. It does not determine nor even by implication
prejudge the validity or efficiency of the provisions, these may be impugned as being vicious
or null, notwithstanding its authentication. The questions relating to these points remain
entirely unaffected, and may be raised even after the will has been authenticated. x x x
From the fact that the legalization of a will does not validate the provisions therein
contained, it does not follow that such provisions lack the efficiency, or fail to produce the
effects which the law recognizes when they arc not impugned by anyone. In the matter of
wills it is a fundamental doctrine that the will of the testator is the law governing the
interested parties, and must be punctually complied with in so far as it is not contrary to
the law or to public morals. (Montaano v. Suesa, 14 Phil. 676, 679-680)
To establish conclusively as against everyone, and once for all, the facts that a will was
executed with the formalities required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the new code for the probate of a
will. (Sec. 625.) The judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of any provisions made in
the will. It can not decide, for example, that a certain legacy is void and another one is
valid. (Castaeda v. Alemany,3 Phil. 426, 428)

Pursuant to the foregoing precedents the pronouncement made by the court a

quodeclaring invalid the legacy made to Dr. Rene Teotico in the will Exhibit A must
be set aside as having been made in excess of its jurisdiction. Another reason why
said pronouncement should be set aside is that the legatee was not given an
opportunity to defend the validity of the legacy for he was not allowed to intervene
in this proceeding. As a corollary, the other pronouncements touching on the
disposition of the estate in favor of some relatives of the deceased should also be set
aside for the same reason.
WHEREFORE, with the exception of that portion of the decision which declares
that the will in question has been duly executed and admitted the same to probate,
the rest of the decision is hereby set aside. This case is ordered remanded to the
court a quofor further proceedings. No pronouncement as to costs.
Bengzon,
C.J., Concepcion, Reyes,J.B.L., Barrera, Paredes, Regala,Makalintal, Bengzon,
J.P., and Zaldivar, JJ., concur.
Dizon, J., took no part.
Decision set aside with exception and case remanded to court a quo for further
proceedings.
Notes.It is well-settled that one who has or can have no interest in succeeding
a decedent cannot oppose the probate of his alleged will. (In the matter of the Will of
Kabigting, 14 Phil. 463; Paras vs. Narciso, 35 Phil. 244; Asinas vs. Court of First
Instance, 51 Phil. 665; Reyes vs. Isip, 97 Phil 11.) The recent reiteration of the same
ruling was in Butiong vs. Surigao Consolidated Mining Co., Inc.,24 SCRA 550,
where the Supreme Court held that appellant corporation cannot oppose the
probate of an alleged will, not having claimed interest in the succession to deceased
testator.
In the case of Torres and Lopez de Bueno vs. Lopez, 48 Phil. 772, the Supreme
Court held that neither old age, physical infirmities, feebleness of mind, weakness
of the memory, the appointment of a guardian, eccentricities singly or jointly to
show testamentary incapacity. The nature and rationality of the will is of some
practical utility in determining capacity. Each case rests on its own facts and must
be decided by its own facts.

No. L-22036. April 30, 1979.

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE

PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC,
petitioner-appellant, vs. BELINA RIGOR, NESTORA RIGOR, FRANCISCA
ESCOBAR DE RIGOR and JOVITA ESCOBAR DE FAUSTO, respondentsappellees.
Settlement of Estate; Will of Testator is the first and principal law in the matter of Testaments.The
will of the testator is the first and principal law in the matter of testaments. When his intention is clearly
and precisely expressed, any interpretation must be in accord when it may certainly appear that his
intention was different from that literally expressed (In re Estate of Caldero, 26 Phil. 237-8).
Same; Same.One canon in the interpretation of the testamentary provisions is that the testators
intention is to be ascertained from the words of the will, taking into consideration the circumstances as
this intention (Art. 789, Civil Code of the Philippines).
Same; A bequest of land to the nearest male relative of the grantor who would study for the
priesthood construed to mean the grantors nearest male relative living at the time of his death and not
any indefinite time thereafter.We hold that the said bequest refers to the testators nearest male
relativeliving at the time of his death and not to anyindefinite time thereafter. In order to be capacitated
to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of
representation, when it is proper. The said testamentary provisions should be sensibly or reasonably
construed. To construe them as referring to the testators nearest male relative at any time after his
death would render the provisions difficult to apply and create uncertainty as to the disposition of his
estate. That could not have been his intention.
Same; Same.In 1935, when the testator died, his nearest legal heirs were his three sisters or
second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator
specified his nearest male relative, he must have had in mind his nephew or a son of his sister, who would
be his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact
date of his death or state with certitude what category of nearest male relative would be living at the time
of his death, he could not specify that his nearest male relative would be his nephew or grandnephew (the
son of his nephew or niece) and so he had to use the term nearest male relative.
Same; Evidence; Evidence aliunde has no probative value.Of course, Mrs. Gamalindas affidavit,
which is tantamount to evidence aliunde as to the testators intention and which is hearsay, has no
probative value. Our opinion that the said bequest refers to the testators nephew who was living at the
time of his death, when his succession was opened and the successional rights to his estate became vested,
rests on a judicious and unbiased reading of the terms of the will.

Same; As the testator was not survived by a nephew who became a priest the bequest became
inoperative and the administration of the ricelands of the parish priest of Victoria, Tarlac also became
inoperative.Inasmuch as the testator was not survived by any nephew who became a priest, the
unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as envisaged in the will, was likewise
inoperative.
Same; Where the parish priest of Victoria, Tarlac, could, under the bequest, become a trustee only
when any of the testators nephews living at the time of his death had not yet entered the seminary or
being a priest was excommunicated, and these contingencies never arose, said parish priest cannot be
deemed a substitute devisee.The appellant in contending that a public charitable trust was constituted
by the testator in his favor assumes that he was a trustee or substitute devisee. That contention is
untenable. A reading of the testamentary provisions regarding the disputed bequest does not support the
view that the parish priest of Victoria was a trustee or a substitute devisee in the event that the testator was
not survived by a nephew who became a priest. It should be underscored that the parish priest of Victoria
could become a trustee only when the testators nephew living at the time of his death, who desired to
become a priest, had not yet entered the seminary or, having been ordained a priest, he was
excommunicated. Those two contingencies did not arise, and could not have arisen, in this case because
no nephew of the testator manifest any intention to enter the seminary or ever became a priest.
Same; Where a bequest is inoperative the same shall be merged, as a rule, to the testators estate.
The Court of Appeals correctly ruled that this case is covered by article 888 of the Old Civil Code, now
Article 956, which provides that if the bequest for any reason should be inoperative, it shall be merged
into the estate, except in cases of substitution and those in which the right of accretion exists. (el legado
x x x por qualquier causa, no tenga efecto, se refundira en la masa de la herencia, fuera, de los cases de
sustitucion y derecho de acrecer).
Same; A person may die partly testate and partly intestate.The Civil Code recognizes that a
person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as
to the indivisibility of the testators will is no longer valid. Thus, if a conditional legacy does not take
effect, there will be intestate succession as to the property covered by the said legacy (Macrahon Ong
Ham vs. Saavedra, 51 Phil. 267).

APPEAL from the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
D. Taedo, Jr. for appellants.
J. Palanca Sr. for appellee.
AQUINO, J.:

This case is about the efficaciousness or enforceability of a devise of ricelands located at

Guimba, Nueva Ecija, with a total area of around forty-four hectares. That devise was made in
the will of the late Father Pascual Rigor, a native of Victoria, Tarlac, in favor of his nearest male
relative who would study for the priesthood.
The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this
Court from the decision of the Court of Appeals affirming the order of the probate court
declaring that the said devise was inoperative (Rigor vs. Parish Priest of the Roman Catholic
Church of Victoria, Tarlac, CA-G.R. No. 24319 R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9,
1935, leaving a will executed on October 29, 1933 which was probated by the Court of First
Instance of Tarlac in its order of December 5, 1935. Named as devisees in the will were the
testators nearest relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina RigorManaloto and Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato
Gamalinda.
In addition, the will contained the following controversial bequest (paragraphing supplied to
facilitate comprehension of the testamentary provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros, situados en el municipio de
Guimba de la provincia de NUEVA ECIJA, cuyo num. de CERTIFICADO DE TRANSFERENCIA DE
TITULO SON;Titulo Num. 6530, mide 16,249 m. cuadrados de superficie; Titulo Num. 6548, mide
242,998 m. cuadrados de superficie; Titulo Num. 6525, mide 62,665 m. cuadrados de superficie; y Titulo
Num. 6521, mide 119,251 m. cuadrados de superficie; a cualquier pariente mio varon mas cercano que
estudie la carrera eclesiastica hasta ordenarse de Presbiterado o sea Sacerdote; las condiciones de estate
legado son:
1. (1.a)Prohibe en absoluto la venta de estos terrenos arriba situados objectos
de este legado;
2. (2.a)Que el legatario pariente mio mas cercano tendra derecho de empezar
a gozar y administrar de este legado al principiar a curzar la Sagrada
Teologia, y ordenado de Sacerdote, hasta su muerte; pero que pierde el
legatario este derecho de administrar y gozar de este legado al dejar de
continuar sus estudios para ordenarse de Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada ao VEINTE (20) Misas
rezadas en sufragio de mi alma y de mis padres difuntos, y si el actual legatario, quedase excomulgado,
IPSO FACTO se le despoja este legado, y la administracion de esto pasara a cargo del actual Parroco y
sus sucesores de la Iglesia Catolica de Victoria, Tarlac.

Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda expresado,
pasara la administracion de este legado a cargo del actual Parroco Catolico y sus sucesores, de Victoria,
Tarlac.
El Parroco administrador de estate legado, acumulara anualmente todos los productos que puede
tener estate legado, ganando o sacando de los productos anuales el CINCO (5) por ciento para su
administracion, y los derechos correspondientes de las VEINTE (20) Misas rezadas que debiera el
Parroco celebrar cada ao, depositando todo lo restante de los productos de estate legado, en un banco, a
nombre de estate legado.

To implement the foregoing bequest, the administratrix in 1940 submitted a project of partition
containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported to be given to the nearest male relative who
shall take the priesthood, and in the interim to be administered by the actual Catholic Priest of the Roman
Catholic Church of Victoria, Tarlac, Philippines, or his successors, the real properties hereinbelow
indicated, to wit:

Titl
e No.

Lot
No.

Area in Tax
Has.
Dec.

T6530

3663 1.6249 18740 P340.00

T6548

3445- 24.299 18730 7,290.00

C
8

T6525

3670 6.2665 18736 1,880.00

T6521

3666 11.9251 18733 3,580.00

Total area 44.1163

and value

Ass. Value

P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition,
directed that after payment of the obligations of the estate (including the sum of P3,132.26 due to
the church of the Victoria parish) the administratrix should deliver to the devisees their
respective shares.
It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning
and implications of Father Rigors bequest to his nearest male relative who would study for the
priesthood. Inasmuch as no nephew of the testator claimed the devise and as the administratrix
and the legal heirs believed that the parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to that ecclesiastic. The testate proceeding remained
pending.
About thirteen years after the approval of the project of partition, or on February 19, 1954, the
parish priest of Victoria filed in the pending testate proceeding a petition praying for the
appointment of a new administrator (succeeding the deceased administratrix, Florencia Rigor),
who should deliver to the church the said ricelands, and further praying that the possessors
thereof be ordered to render an accounting of the fruits. The probate court granted the petition, A
new administrator was appointed. On January 31, 1957 the parish priest filed another petition for
the delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying
that the bequest be declared inoperative and that they be adjudged as the persons entitled to the
said ricelands since, as admitted by the parish priest of Victoria, no nearest male relative of the
testator has ever studied for the priesthood (pp. 25 and 35, Record on Appeal).
That petition was opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino,
declared the bequest inoperative and adjudicated the ricelands to the testators legal heirs in his
order of June 28, 1957. The parish priest filed two motions for reconsideration.
Judge De Aquino granted the second motion for reconsideration in his order of December 10,
1957 on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the
grandson of his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit Fathers
in Quezon City. The administrator was directed to deliver the ricelands to the parish priest of
Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father
Rigor had created a testamentary trust for his nearest male relative who would take the holy
orders but that such trust could exist only for twenty years because to enforce it beyond that
period would violate the rule against perpetuities. It ruled that since no legatee claimed the

ricelands within twenty years after the testators death, the same should pass to his legal heirs,
citing articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil Coda
The parish priest in this appeal contends that the Court of Appeals erred in not finding that the
testator created a public charitable trust and in not liberally construing the testamentary
provisions so as to render the trust operative and to prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals declared the bequest inoperative
because no one among the testators nearest male relatives had studied for the priesthood and not
because the trust was a private charitable trust. According to the legal heirs, that factual finding is
binding on this Court. They point out that appellant priests change of theory cannot be
countenanced in this appeal.
In this case, as in cases involving the law of contracts and statutory construction, where the
intention of the contracting parties or of the lawmaking body is to be ascertained, the primary
issue is the determination of the testators intention which is the law of the case (dicat testor et
erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals,L-28734, March
28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of testaments. When his
intention is clearly and precisely expressed, any interpretation must be in accord with the plain
and literal meaning of his words, except when it may certainly appear that his intention was
different from that literally expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of wills. It is the life and
soul of a will. It is the first greatest rule, the sovereign guide, the polestar, in giving effect to a
will. (See Dissent of Justice Moreland inSantos vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that the testators intention
is to be ascertained from the words of the will, taking into consideration the circumstances under
which it was made, but excluding the testators oral declarations as to his intention (Art 789,
Civil Code of the Philippines).
To ascertain Father Rigors intention, it may be useful to make the following restatement of
the provisions of his will:
1. 1.that he bequeathed the ricelands to anyone of his nearest male relatives
who would pursue an ecclesiastical career until his ordination as a priest.
2. 2.That the devisee could not sell the ricelands.
3. 3.That the devisee at the inception of his studies in sacred theology could
enjoy and administer the ricelands, and once ordained as a priest, he could

continue enjoying and administering the same up to the time of his death
but the devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. 4.That if the devisee became a priest, he would be obligated to celebrate
every year twenty masses with prayers for the repose of the souls of Father
Rigor and his parents.

1. 5.That if the devisee is excommunicated, he would be divested of the legacy

and the administration of the ricelands would pass to the incumbent parish
priest of Victoria and his successors.

2. 6.That during the interval of time that there is no qualified devisee, as

contemplated above, the administration of the ricelands would be under the
responsibility of the incumbent parish priest of Victoria and his successors,
and
3. 7.That the parish priest-administrator of the ricelands would accumulate
annually the products thereof, obtaining or getting from the annual produce
five percent thereof for his administration and the fees corresponding to the
twenty masses with prayers that the parish priest would celebrate for each
year, depositing the balance of the income of the devise in the bank in the
names of his bequest.

From the foregoing testamentary provisions, it may be deduced that the testator intended to
devise the ricelands to his nearest male relative who would become a priest, who was forbidden
to sell the ricelands, who would lose the devise if he discontinued his studies for the priesthood,
or having been ordained a priest, he was excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the ricelands
only in two situations: one, during the interval of time that no nearest male relative of the testator
was studying for the priesthood and two, in case the testators nephew became a priest and he
was excommunicated.
What is not clear is the duration of el intervalo de tiempo que no haya legatario
acondicionado, or how long after the testators death would it be determined that he had a
nephew who would pursue an ecclesiastical vocation. It is that patent ambiguity that has brought
about the controversy between the parish priest of Victoria and the testators legal heirs.
Interwoven with that equivocal provision is the time when the nearest male relative who
would study for the priesthood should he determined. Did the testator contemplate only his
nearest male relative at the time of his death? Or did he have in mind any of his nearest male
relatives at anytime after his death?

We hold that the said bequest refers to the testators nearest male relative living at the time of
his death and not to anyindefinite time thereafter. In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the succession opens, except in case of
representation, when it is proper (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To construe
them as referring to the testators nearest male relative atanytime after his death would render the
provisions difficult to apply and create uncertainty as to the disposition of his estate. That could
not have been his intention.
In 1935, when the testator died, his nearest legal heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator
specified his nearest male relative, he must have had in mind his nephew or a son of his sister,
who would be his third-degree relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude what category of nearest male
relative would be living at the time of his death, he could not specify that his nearest male
relative would be his nephew or grandnephews (the sone of his nephew or niece) and so he had
to use the term nearest male relative.
It is contended by the legal heirs that the said devise was in reality intended for Ramon
Quiambao, the testators nephew and godchild, who was the son of his sister, Mrs. Quiambao. To
prove that contention, the legal heirs presented in the lower court the affidavit of Beatriz
Gamalinda, the maternal grandmother of Edgardo Cunanan, who deposed that after Father
Rigors death, her own son, Valentin Gamalinda, Jr., did not claim the devise, although he was
studying for the priesthood at the San Carlos Seminary, because she (Beatriz) knew that Father
Rigor had intended that devise for his nearest male relative beloning to the Rigor family (pp.
105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the
one contemplated in Father Rigors will and that Edgardos father told her that he was not
consulted by the parish priest of Victoria before the latter filed his second motion for
reconsideration which was based on the ground that the testators grandnephew, Edgardo, was
studying for the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in
1961. For that reason, the legal heirs apprised the Court of Appeals that the probate courts order
adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84,
Appellants brief).
Of course, Mrs. Gamalindas affidavit, which is tantamount to evidence aliundeas to the
testators intention and which is hearsay, has no probative value. Our opinion that the said

bequest refers to the testators nephew who was living at the time of his death, when his
succession was opened and the successional rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of the will.
Had the testator intended that the cualquier pariente mio varon mas cercano que estudie la
carrera eclesiastica would include indefinitely anyone of his nearest male relatives born after
his death, he could have so specified in his will. He must have known that such a broad provision
would suspend for an unlimited period of time the efficaciousness of his bequest.
What then did the testator mean by el intervalo de tiempo que no haya legatario
acondidonado? The reasonable view is that he was referring to a situation whereby his nephew
living at the time of his death, who would like to become a priest, was still in grade school or in
high school or was not yet in the seminary. In that case, the parish priest of Victoria would
administer the ricelands before the nephew entered the seminary. But the moment the testators
nephew entered the seminary, then he would be entitled to enjoy and administer the ricelands and
receive the fruits thereof. In that event, the trusteeship would be terminated.
Following that interpretation of the will, the inquiry would be whether at the time Father Rigor
died in 1935 he had a nephew who was studying for the priesthood or who had manifested his
desire to follow the ecclesiastical career. That query is categorically answered in paragraph 4 of
appellant priests petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged
therein that no nearest male relative of the late (Father) Pascual Rigor has ever studied for the
priesthood (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest, the
unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore,
the administration of the ricelands by the parish priest of Victoria, as envisaged in the will, was
likewise inoperative.
The appellant in contending that a public charitable trust was constituted by the testator in is
favor assumes that he was a trustee or a substitute devisee. That contention is untenable. A
reading of the testamentary provisions regarding the disputed bequest not support the view that
the parish priest of Victoria was a trustee or a substitute devisee in the event that the testator was
not survived by a nephew who became a priest.
It should be understood that the parish priest of Victoria could become a trustee only when the
testators nephew living at the time of his death, who desired to become a priest, had not yet
entered the seminary or, having been ordained a priest, he was excommunicated. Those two
contingencies did not arise, and could not have arisen, in this case because no nephew of the
testator manifested any intention to enter the seminary or ever became a priest.

The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil
Code, now article 956, which provides that if the bequest for any reason should be inoperative,
it shall be merged into the estate, except in cases of substitution and those in which the right of
accretion exists (el legado x x x por qualquier causa, no tenga efecto, se refundir en la masa
de la herencia, fuera de los casos de sustitucin y derecho de acrecer).
This case is also covered by article 912(2) of the old Civil Code, now article 960 (2),
which provides that legal succession takes place when the will does not dispose of all
that belongs to the testator. There being no substitution nor accretion as to the said
ricelands, the same should be distributed among the testators legal heirs. The effect
is as if the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly
intestate, or that there may be mixed succession. The old rule as to the indivisibility
of the testators will is no longer valid. Thus, if a conditional legacy does not take
effect, there will be intestate succession as to the property covered by the said legacy
(Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal. The Appellate Courts decision is affirmed. Costs
against the petitioner.
SO ORDERED.
Fernando (Actg. C.J.), Barredo(Actg. Chairman), Antonio, Concepcion Jr.,
and Santos, JJ., concur.
Abad Santos, J., did not take part.
Decision affirmed.
Notes.It is essentially the duty of every person dealing at arms length with the
administrator of an estate subject of settlement and liquidation to inquire about the
existence of claims against, or of persons having an interest in the estate subject to
probate and settlement proceedings. (Dolor vs. Sundiam, 39 SCRA 616).
The better practice for the heir who has not received his share is to demand his
share through a proper motion in the same probate or administration proceedings if
it had already been closed, and through an independent action which would be tried
by another Court or Judge which may thus reverse a decision or order of the probate

or intestate court already final and executed. (Guilas vs. Judge of Court of First
Instance, 43 SCRA 111; Macias vs. Uy Kim, 45 SCRA 251.)
A will may be allowed even if some witnesses do not remember having attested to
it, if other evidence satisfactorily show due execution. Failure of a witness to identify
his signature will not necessarily bar probate. (Maravilla vs. Maravilla, 37 SCRA
672).
Testate proceedings for the settlement of the estate of a deceased person take
precedence over intestate proceedings for the same purpose. (Uriarte vs. Court of First
Instance of Negros Occidental, 33 SCRA 252.)
The power to settle decedents estate is conferred by law upon all Courts of First
Instance, and the domicile of the testator only affects the venue but not the
jurisdiction of the court. (Rodriguez vs. Borja, 17 SCRA 418.)
In a special proceeding for the settlement of an estate, the court has no jurisdiction
to determine who are the heirs of the brother of the deceased and who should inherit
his estate. (Bacani vs. Galauran, 4 SCRA 1063.)
The probate court acted correctly in holding a hearing to determine the amount
and the manner in which an heir, in possession of a portion of the decedents estate,
should contribute for the payment of the creditors claims and taxes. (Ignacio vs.
Elchico, 20 SCRA 100.)
Every act intended to put an end to in division among coheirs and legatees and
divisees is deemed to be a partition, although it should purport to be a sale, an
exchange, a compromise, or any other transaction (Art. 1082, New Civil Code).
(Gutierrez vs. Villegas, 5 SCRA 313.)
The intention and wishes of the testator, when clearly expressed in his will,
constitute the fixed law of interpretation, and all questions raised at the trial, relative
to its execution and fulfillment, must be settled in accordance therewith, following
the plain and literal meaning of the testators words, unless it clearly appears that his
intention was otherwise. (Vda. de Villanueva vs. Juico,4 SCRA 550.)
o0o

No. L-54919. May 30, 1984.

POLLY CAYETANO, petitioner, vs.HON. TOMAS T. LEONIDAS, in his capacity as

the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and
NENITA CAMPOS PAGUIA, respondents.
Succession; Due Process; Attorneys; There being a proper substitution of attorneys where
the Motion to Dismiss Opposition to reprobate of will was filed, trial judge acted properly in
hearing evidence ex parte on probate of will in question.We find no grave abuse of
discretion on the part of the respondent judge. No proof was adduced to support petitioners
contention that the motion to withdraw was secured through fraudulent means and that
Atty. Franco Loyola was not his counsel of record. The records show that after the filing of
the contested motion, the petitioner at a later date, filed a manifestation wherein he
confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover,
at the time the motion was filed, the petitioners former counsel, Atty. Jose P. Lagrosa had
long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn
filed the motion. The present petitioner cannot, therefore, maintain that the old mans
attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal
was in order, the respondent judge acted correctly in hearing the probate of the will exparte, there being no other opposition to the same.
Same; Where circumstances demand that intrinsic validity of testamentary provisions
be passed upon even before the extrinsic validity of will is resolved, probate court should meet
the issue.The third issue raised deals with the validity of the provisions of the will. As a
general rule, the probate courts authority is limited only to the extrinsic validity of the will,
the due execution thereof, the testatrixs testamentary capacity and the compliance with
the requisites or solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the court has declared that the will has been duly authenticated. However,
where practical considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the court should meet the issue. (Maninang v. Court of Appeals,
114 SCRA 478).
Same; The U.S. law on succession in the state of Pennsylvania applies to the intrinsic
and extrinsic validity of the last will and testament of a U.S. national and resident of
Pennsylvania under whose laws a person may give his entire estate to a complete stranger.
Although on its face, the will appeared to have preterited the petitioner and thus, the
respondent judge should have denied its reprobate outright, the private respondents have
sufficiently established that Adoracion was, at the time of her death, an American citizen

and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16

par. (2) and 1039 of the Civil Code which respectively provide: x x x x the law which governs
Adoracion Campos will is the law of Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the Pennsylvania law does not provide for
legitimes and that all the estate may be given away by the testatrix to a complete stranger,
the petitioner argues that such law should not apply because it would be contrary to the
sound and established public policy and would run counter to the specific provisions of
Philippine Law.
Same; Same.It is a settled rule that as regards the intrinsic validity of the provisions
of the will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law of
the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA
358).
Motions; Due Process; There was no denial of due process as what the court repeatedly
set for hearing was the Petition for Relief, not the Motion to Vacate Order of Jan. 10, 1979.
As regards the alleged absence of notice of hearing for the petition for relief, the records will
bear the fact that what was repeatedly scheduled for hearing on separate dates until June
19, 1980 was the petitioners petition for relief and not his motion to vacate the order of
January 10, 1979. There is no reason why the petitioner should have been led to believe
otherwise. The court even admonished the petitioners failing to adduce evidence when his
petition for relief was repeatedly set for hearing. There was no denial of due process. The
fact that he requested for the future setting of the case for hearing x x x did not mean that
at the next hearing, the motion to vacate would be heard and given preference in lieu of the
petition for relief. Furthermore, such request should be embodied in a motion and not in a
mere notice of hearing.
Succession; Jurisdiction; Probate of Will of American citizen who left an estate in the
Philippines was properly filed in the City of Manila where estate is located. Therefore, the
settlement of the estate of Adoracion Campos was correctly filed with the Court of First
Instance of Manila where she had an estate since it was alleged and proven that Adoracion
at the time of her death was a citizen and permanent resident of Pennsylvania, United
States of America and not a usual resident of Cavite as alleged by the petitioner.
Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court
in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a
court to secure affirmative relief, against his opponent and after failing to obtain such
relief, repudiate or question that same jurisdiction.

PETITION for review on certiorari the order of the Court of First Instance of
Manila, Br. XXXVIII. Leonidas, J.

The facts are stated in the opinion of the Court.

Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul the order of the
respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which
admitted to and allowed the probate of the last will and testament of Adoracion C.
Campos, after an ex-parte presentation of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters, private respondent Nenita C. Paguia,
Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes
Campos was the only compulsory heir, he executed an Affidavit of Adjudication
under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself
the ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for
the reprobate of a will of the deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment as administratrix of the
estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the
time of her death and was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31,
1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila;
that during her lifetime, the testatrix made her last will and testament on July 10,
1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of
New Jersey as executor; that after the testatrix death, her last will and testament
was presented, probated, allowed, and registered with the Registry of Wills at the
County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who
was appointed after Dr. Barzaga had declined and waived his appointment as
executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that
therefore, there is an urgent need for the appointment of an administratrix to

administer and eventually distribute the properties of the estate located in the
Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by
herein petitioner alleging among other things, that he has every reason to believe
that the will in question is a forgery; that the intrinsic provisions of the will are null
and void; and that even if pertinent American laws on intrinsic provisions are
invoked, the same could not apply inasmuch as they would work injustice and injury
to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco
Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests)
stating that he has been able to verify the veracity thereof (of the will) and now
confirms the same to be truly the probated will of his daughter Adoracion. Hence,
an ex-parte presentation of evidence for the reprobate of the questioned will was
made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her
lifetime, was a citizen of the United States of America with a permanent residence at 4633
Ditman Street, Philadelphia, PA 19124, (Exhibit D); that when alive, Adoracion C. Campos
executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A.,
according to the laws thereat (Exhibits E-3 to E-3-b); that while in temporary sojourn in the
Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property
both in the Philippines and in the United States of America; that the Last Will and
Testament of the late Adoracion C. Campos was admitted and granted probate by the
Orphans Court Division of the Court of Common Pleas, the probate court of the
Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of
administration were issued in favor of Clement J. McLaughlin, all in accordance with the
laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10);
and that the petitioner is not suffering from any disqualification which would render her
unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby
admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby
appointed Administratrix of the estate of said decedent; let Letters of Administration with
the Will annexed issue in favor of said Administratrix upon her filing of a bond in the

amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of
Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the
withdrawal of his opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the
order allowing the will be set aside on the ground that the withdrawal of his
opposition to the same was secured through fraudulent means. According to him,
the Motion to Dismiss Opposition was inserted among the papers which he signed
in connection with two Deeds of Conditional Sales which he executed with the
Construction and Development Corporation of the Philippines (CDCP). He also
alleged that the lawyer who filed the withdrawal of the opposition was not his
counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He
made several motions for postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled Motion to Vacate and/or
Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of
jurisdiction. In this motion, the notice of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the
morning for submission for reconsideration and resolution of the Honorable Court. Until
this Motion is resolved, may I also request for the future setting of the case for hearing on
the Oppositors motion to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the
case was called for hearing on this date, the counsel for petitioner tried to argue his
motion to vacate instead of adducing evidence in support of the petition for relief.
Thus, the respondent judge issued an order dismissing the petition for relief for
failure to present evidence in support thereof. Petitioner filed a motion for
reconsideration but the same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will,
which, incidentally has been questioned by the respondent, his children and forced
heirs as, on its face, patently null and void, and a fabrication, appointing Polly

Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in the instant case which was granted by
the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner
Hermogenes Campos merged upon his death with the rights of the respondent and
her sisters, only remaining children and forced heirs was denied on September 12,
1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted
without or in excess of his jurisdiction when:
1. 1)He ruled the petitioner lost his standing in court deprived the Right to Notice (sic)

upon the filing of the Motion to Dismiss opposition with waiver of rights or
interests against the estate of deceased Adoracion C. Campos, thus, paving the way
for the ex-parte hearing of the petition for the probate of decedent will.

1. 2)He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by
way of a motion presented prior to an order for the distribution of the estatethe
law especially providing that repudiation of an inheritance must be presented,
within 30 days after it has issued an order for the distribution of the estate in
accordance with the rules of Court.
2. 3)He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession.
3. 4)He denied petitioners petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petitiona denial of the due process and
a grave abuse of discretion amounting to lack of jurisdiction.
4. 5)He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmarias, Cavite, consequently Cavite
Court of First Instance has exclusive jurisdiction over the case (De Borja vs.
Tan, G.R. No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the
respondent judge acted with grave abuse of discretion when he allowed the
withdrawal of the petitioners opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof
was adduced to support petitioners contention that the motion to withdraw was
secured through fraudulent means and that Atty. Franco Loyola was not his counsel
of record. The records show that after the filing of the contested motion, the
petitioner at a later date, filed a manifestation wherein he confirmed that the
Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time
the motion was filed, the petitioners former counsel, Atty. Jose P. Lagrosa had long
withdrawn from the case and had been substituted by Atty. Franco Loyola who in
turn filed the motion. The present petitioner cannot, therefore, maintain that the
old mans attorney of record was Atty. Lagrosa at the time of filing the motion. Since
the withdrawal was in order, the respondent judge acted correctly in hearing the
probate of the will ex-parte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a
general rule, the probate courts authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testatrixs testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court has declared that the will
has been duly authenticated. However, where practical considerations demand that
the intrinsic validity of the will be passed upon, even before it is probated, the court
should meet the issue. (Maninang v. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge
allowed the reprobate of Adoracions will, Hermogenes C. Campos was divested of
his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus,
the respondent judge should have denied its reprobate outright, the private
respondents have sufficiently established that Adoracion was, at the time of her
death, an American citizen and a permanent resident of Philadelphia,

Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code
which respectively provide:
Art. 16 par. (2).
xxx

xxx

xxx

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.
Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campos will is the law of Pennsylvania, U.S.A.,
which is the national law of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and that all the estate may be given
away by the testatrix to a complete stranger, the petitioner argues that such law
should not apply because it would be contrary to the sound and established public
policy and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the
will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law of
the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20
SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved in our
system of legitimes, Congress has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter alia, the amount of
successional rights, to the decedents national law. Specific provisions must prevail over
general ones.
xxx

xxx

xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas,
U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since
the intrinsic validity of the provision of the will and the amount of successional rights are to
be determined under Texas law, the Philippine Law on legitimes cannot be applied to the
testacy of Amos G. Bellis.

As regards the alleged absence of notice of hearing for the petition for relief, the
records will bear the fact that what was repeatedly scheduled for hearing on
separate dates until June 19, 1980 was the petitioners petition for relief and not his
motion to vacate the order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise. The court even admonished the
petitioners failing to adduce evidence when his petition for relief was repeatedly set
for hearing. There was no denial of due process. The fact that he requested for the
future setting of the case for hearing x x x did not mean that at the next hearing,
the motion to vacate would be heard and given preference in lieu of the petition for
relief. Furthermore, such request should be embodied in a motion and not in a mere
notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction utterly
devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled.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, in the Court of First Instance in the province in which he resided at the time of his death, and
if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate.
The court first 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 proceeding, except in an appeal
from that court, in the original case, or when the want of jurisdiction appears on the record.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of
First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at
the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a usual resident of Cavite as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled
rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or question that same jurisdiction.
(See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relovaand De la Fuente, JJ., concur.

Teehankee, J., (Chairman), no part.

Petition dismissed.
Notes.For petition for certiorari to prosper, the grave abuse of discretion committed by the
Tribunal must be shown. (Ignacio vs. Court of Appeals, 96 SCRA 648.)
For certiorari to lie there must be a capricious, arbitrary and whimsical exercise of power, the
very antithesis of the judicial prerogative in accordance with centuries of both civil law and common
law tradition. (People vs. Vallarta, 77 SCRA 476.)
Disregard of available facts by a judge constitutes grave abuse of discretion. (Commissioner of
Customs vs. Geronimo,80 SCRA 74.)

No. L-41171. July 23, 1987.

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO

BORROMEO-HERRERA, petitioner, vs.FORTUNATO BORROMEO and HON.
FRANCISCO P. BURGOS, Judge of the Court of First Instance of Cebu, Branch II,
respondents.
No. L-55000. July 23, 1987.

IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR

N. BORROMEO, MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE
BORROMEO, CONSUELO B. MORALES, AND CANUTO V. BORROMEO, JR.,
heirs-appellants, vs.FORTUNATO BORROMEO, claimant-appellee.
No. L-62895. July 23, 1987.

JOSE CUENCO BORROMEO, petitioner, vs. HONORABLE COURT OF APPEALS,

HON. FRANCISCO P. BURGOS, As presiding Judge of the (now) Regional Trial
Court, Branch XV, Region VII, RICARDO V. REYES, as Administrator of the Estate
of Vito Borromeo in Sp. Proc. No. 916-R, NUMERIANO G. ESTENZO and
DOMINGO L. ANTIGUA, respondents.
No. L-63818. July 23, 1987.

DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the Intestate

Estate of VITO BORROMEO, Sp. Proc. No. 916-R, Regional Trial Court of Cebu,
joined by HON. JUDGE FRANCISCO P. BURGOS, as Presiding Judge of Branch
XV of the Regional Trial Court of Cebu, as a formal party, and ATTYS. FRANCIS
M.
ZOSA,
GAUDIOSO
RUIZ
and
NUMERIANO
ESTENZO,
petitioners, vs.HONORABLE INTERMEDIATE APPELLATE COURT, JOSE
CUENCO BORROMEO, and PETRA O. BORROMEO, respondents.
No. L-65995. July 23, 1987.
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and
JOSE CUENCO BORROMEO, petitioners, vs. HONORABLE FRANCISCO P.
BURGOS, Presiding Judge of Branch XV, Regional Trial Court of Cebu; RICARDO
V. REYES, Administrator of the Estate of VITO BORROMEO in Sp. Proc. No. 916R; and DOMINGO L. ANTIGUA, respondents.
Civil Law; Succession; Heirs acquire a right to succession from the moment of the death
of the deceased.The prevailing jurisprudence on waiver of hereditary rights is that "the
properties included in an existing inheritance cannot be considered as belonging to third
persons with respect to the heirs, who by fiction of law continue the personality of the
former. Nor do such properties have the character of future property, because the heirs
acquire a right to succession from the moment of the death of the deceased, by principle
established in article 657 and applied by article 661 of the Civil Code, according to which
the heirs succeed the deceased by the mere fact of death. More or less, time may elapse from
the moment of the death of the deceased until the heirs enter into possession of the
hereditary property, but the acceptance in any event retro acts to the moment of the death,
in accordance with article 989 of the Civil Code. The right is vested, although conditioned
upon the adjudication of the corresponding hereditary portion." (Osorio v. Osorio and
Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their hereditary
rights in 1967 even if the order to partition the estate was issued only in 1969.
Same; Same; Waiver of hereditary rights, requisites.In this case, however, the
purported "Waiver of Hereditary Rights" cannot be considered to be effective. For a waiver
to exist, three elements are essential: (1) the existence of a right; (2) the knowledge of the
existence thereof; and (3) an intention to relinquish such right. (People v. Salvador, (CA) 53
O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must be shown
clearly and convincingly, and when the only proof of intention rests in what a party does, his
act should be so manifestly consistent with, and indicative of an intent to, voluntarily

relinquish the particular right or advantage that no other reasonable explanation of his
conduct is possible.
Jurisdiction; Trial Court has jurisdiction to pass upon the validity of the waiver
agreement.With respect to the issue of jurisdiction, we hold that the trial court had
jurisdiction to pass upon the validity of the waiver agreement. It must be noted that in
Special Proceedings No. 916-R the lower court disallowed the probate of the will and
declared it as fake. Upon appeal, this Court affirmed the decision of the lower court on
March 30, 1967, in G.R. No. L-18498. Subsequently, several parties came before the lower
court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo. We see no impediment to the trial court in exercising jurisdiction and trying the
said claims or petitions. Moreover, the jurisdiction of the trial court extends to matters
incidental and collateral to the exercise of its recognized powers in handling the settlement
of the estate.
Legal and Judicial Ethics; Judges;Suspicion of partiality on the part of a trial judge
must be avoided at all costs.The allegations of the private respondents in their motion for
inhibition, more specifically, the insistence of the trial judge to sell the entire estate at
P6,700,000.00, where 4/9 group of heirs objected, cannot easily be ignored. Suspicion of
partiality on the part of a trial judge must be avoided at all costs. In the case of Bautista v.
Rebueno (81 SCRA 535), this Court stated: "x x x The Judge must maintain and preserve
the trust and faith of the parties litigants. He must hold himself above reproach and
suspicion. At the very first sign of lack of faith and trust to his actions, whether well
grounded or not, the Judge has no other alternative but inhibit himself from the case. A
judge may not be legally prohibited from sitting in a litigation, but when circumstances
appear that will induce doubt to his honest actuations and probity in favor of either party,
or incite such state of mind, he should conduct a careful self-examination. He should
exercise his discretion in a way that the people's faith in the Courts of Justice is not
impaired. The better course for the Judge under such circumstances is to disqualify himself.
That way, he avoids being misunderstood, his reputation for probity and objectivity is
preserved. What is more important, the ideal of impartial administration of justice is lived
up to."

PETITION to review the order of the Court of First Instance of Cebu, Br. II. Burgos,
J.
The facts are stated in the opinion of the Court.
GUTIERREZ, JR., J.:

These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First
Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13,
1952, in Paraaque, Rizal at the age of 88 years, without forced heirs but leaving
extensive properties in the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a
petition for the probate of a one page document as the last will and testament left by
the said deceased, devising all his properties to Tomas, Fortunato and Amelia, all
surnamed Borromeo, in equal and undivided shares, and designating Junquera as
executor thereof. The case was docketed as Special Proceedings No. 916-R. The
document, drafted in Spanish, was allegedly signed and thumbmarked by the
deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto
Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after due trial,
the probate court held that the document presented as the will of the deceased was
a forgery. On appeal to this Court, the decision of the probate court disallowing the
probate of the will was affirmed in Testate Estate of Vito Borromeo, Jose H.
Junquera, et al. v. Crispin Borromeo, et al. (19 SCRA 656).
The testate proceedings was converted into an intestate proceedings. Several
parties came before the court filing claims or petitions alleging themselves as heirs
of the intestate estate of Vito Borromeo.
The following petitions or claims were filed:
1. 1.On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a
petition for declaration of heirs and determination of heirship. There was no
opposition filed against said petition.
2. 2.On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as
heir. The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to
this petition.

3. 3.On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon
Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora
Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition for
declaration of heirs and determination of shares. The petition was opposed by the
heirs of Jose and Cosme Borromeo.
4. 4.On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda
Borromeo Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim.
Jose Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of
Carlos Borromeo represented by Jose Talam filed oppositions to this claim.

When the aforementioned petitions and claims were heard jointly, the following
facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter
having predeceased the former), were survived by their eight (8) children, namely,

Jose Ma. Borromeo

Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo

2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his
brothers and sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the following children:
1. a.Ismaela Borromeo, who died on Oct. 16, 1939
2. b.Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito
Borromeo. He was married to Remedios Cuenco Borromeo, who died on March 28,
1968. He had an only sonAtty. Jose Cuenco Borromeo one of the petitioners
herein.
3. c.Crispin Borromeo, who is still alive.

4. Aniceta Borromeo, sister of Vito Borromeo, died ahead of him and left an only
daughter, Aurora B. Ocampo, who died on Jan. 30, 1950 leaving the following
children:
1. a.Aniceta Ocampo Castro
2. b.Ramon Ocampo
3. c.Lourdes Ocampo
4. d.Elena Ocampo, all living, and
5. e.Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.

5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left
the following children:
1. a.Marcial Borromeo
2. b.Carlos Borromeo, who died on Jan. 18, 1965, survived by his wife, Remedios
Alfonso, and his only daughter, Amelinda Borromeo Talam.
3. c.Asuncion Borromeo
4. d.Florentina Borromeo, who died in 1948.
5. e.Amilio Borromeo, who died in 1944.

6. f.Carmen Borromeo, who died in 1925.

The last three died leaving no issue.

6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and
left the following children:
1. a.Exequiel Borromeo, who died on December 29,1949
2. b.Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:
1. aa.Federico Borromeo

1. bb.Marisol Borromeo (Maria B. Putong, Rec. p. 85)

2. cc.Canuto Borromeo, Jr.
3. dd.Jose Borromeo
4. ee.Consuelo Borromeo
5. ff.Pilar Borromeo
6. gg.Salud Borromeo
7. hh.Patrocinio Borromeo Herrera
1. c.Maximo Borromeo, who died in July, 1948
2. d.Matilde Borromeo, who died on Aug. 6,1946
3. e.Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:
1. aa.Maria Borromeo Atega
2. bb.Luz Borromeo
3. cc.Hermenegilda Borromeo Nonnenkamp
4. dd.Rosario Borromeo
5. ee.Fe Borromeo Queroz

On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an
order declaring the following, to the exclusion of all others, as the intestate heirs of
the deceased Vito Borromeo:
1. 1.Jose Cuenco Borromeo
2. 2.Judge Crispin Borromeo
3. 3.Vitaliana Borromeo
4. 4.Patrocinio Borromeo Herrera
5. 5.Salud Borromeo
6. 6.Asuncion Borromeo
7. 7.Marcial Borromeo
8. 8.Amelinda Borromeo de Talam, and
9. 9.The heirs of Canuto Borromeo

The court also ordered that the assets of the intestate estate of Vito Borromeo shall
be divided into 4/9 and 5/9 groups and distributed in equal and equitable shares
among the 9 abovenamed declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B.
Herrera, signed an agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order of August 15, 1969. In
this same order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to
partition the properties of the deceased in the way and manner they are divided and
partitioned in the said Agreement of Partition and further ordered that 40% of the
market value of the 4/9 and 5/9 of the estate shall be segregated. All attorney's fees
shall be taken and paid from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as
heir under the forged will, filed a motion before the trial court praying that he be
declared as one of the heirs of the deceased Vito Borromeo, alleging that he is an
illegitimate son of the deceased and that in the declaration of heirs made by the
trial court, he was omitted, in disregard of the law making him a forced heir entitled

to receive a legitime like all other forced heirs. As an acknowledged illegitimate

child, he stated that he was entitled to a legitime equal in every case to four-fifths of
the legitime of an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was already barred by the order
of the court dated April 12, 1969 declaring the persons named therein as the legal
heirs of the deceased Vito Borromeo, the court dismissed the motion on June 25,
1973.
Fortunato Borromeo filed a motion for reconsideration. In the memorandum he
submitted to support his motion for reconsideration, Fortunato changed the basis
for his claim to a portion of the estate. He asserted and incorporated a Waiver of
Hereditary Rights dated July 31, 1967, supposedly signed by Pilar N. Borromeo,
Maria B. Putong, Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
Patrocinio BorromeoHerrera, Marcial Borromeo, Asuncion Borromeo, Federico V.
Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam. In the
waiver, five of the nine heirs relinquished to Fortunato their shares in the disputed
estate. The motion was opposed on the ground that the trial court, acting as a
probate court, had no jurisdiction to take cognizance of the claim; that respondent
Fortunato Borromeo is estopped from asserting the waiver agreement; that the
waiver agreement is void as it was executed before the declaration of heirs; that the
same is void having been executed before the distribution of the estate and before
the acceptance of the inheritance; and that it is void ab initio and inexistent for lack
of subject matter.
On December 24, 1974, after due hearing, the trial court concluding that the five
declared heirs who signed the waiver agreement assigning their hereditary rights to
Fortunato Borromeo had lost the same rights, declared the latter as entitled to 5/9
of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.
In the present petition, the petitioner seeks to annul and set aside the trial
court's order dated December 24, 1974, declaring respondent Fortunato Borromeo
entitled to 5/9 of the estate of Vito Borromeo and the July 7, 1975 order, denying the
motion f or reconsideration.

The petitioner argues that the trial court had no jurisdiction to take cognizance
of the claim of respondent Fortunato Borromeo because it is not a money claim
against the decedent but a claim for properties, real and personal, which constitute
all of the shares of the heirs in the decedent's estate, heirs who allegedly waived
their rights in his favor. The claim of the private respondent under the waiver
agreement, according to the petitioner, may be likened to that of a creditor of the
heirs which is improper. He alleges that the claim of the private respondent under
the waiver agreement was filed beyond the time allowed for filing of claims as it was
filed only sometime in 1973, after there had been a declaration of heirs (April 10,
1969), an agreement of partition (April 30, 1969), the approval of the agreement of
partition and an order directing the administrator to partition the estate (August
15, 1969), when in a mere memorandum, the existence of the waiver agreement was
brought out.
It is further argued by the petitioner that the document entitled "Waiver of
Hereditary Rights" executed on July 31, 1967, aside from having been cancelled and
revoked on June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo and Amelia
Borromeo, is without force and effect because there can be no effective waiver of
hereditary rights before there has been a valid acceptance of the inheritance the
heirs intend to transfer. Pursuant to Article 1043 of the Civil Code, to make
acceptance or repudiation of inheritance valid, the person must be certain of the
death of the one from whom he is to inherit and of his right to the inheritance. Since
the petitioner and her co-heirs were not certain of their right to the inheritance
until they were declared heirs, their rights were, therefore, uncertain. This view,
according to the petitioner, is also supported by Article 1057 of the same Code which
directs heirs, devisees, and legatees to signify their acceptance or repudiation
within thirty days after the court has issued an order for the distribution of the
estate.
Respondent Fortunato Borromeo on the other hand, contends that under Article
1043 of the Civil Code there is no need for a person to be first declared as heir before
he can accept or repudiate an inheritance. What is required is that he must first be
certain of the death of the person from whom he is to inherit and that he must be
certain of his right to the inheritance. He points out that at the time of the signing
of the waiver document on July 31, 1967, the signatories to the waiver document
were certain that Vito Borromeo was already dead as well as of their rights to the
inheritance as shown in the waiver document itself.

With respect to the issue of jurisdiction of the trial court to pass upon the validity
of the waiver of hereditary rights, respondent Borromeo asserts that since the
waiver or renunciation of hereditary rights took place after the court assumed
jurisdiction over the properties of the estate it partakes of the nature of a partition
of the properties of the estate needing approval of the court because it was executed
in the course of the proceedings. He further maintains that the probate court loses
jurisdiction of the estate only after the payment of all the debts of the estate and the
remaining estate is distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that "the
properties included in an existing inheritance cannot be considered as belonging to
third persons with respect to the heirs, who by fiction of law continue the
personality of the former. Nor do such properties have the character of future
property, because the heirs acquire a right to succession from the moment of the
death of the deceased, by principle established in article 657 and applied by article
661 of the Civil Code, according to which the heirs succeed the deceased by the mere
fact of death. More or less, time may elapse from the moment of the death of the
deceased until the heirs enter into possession of the hereditary property, but the
acceptance in any event retro acts to the moment of the death, in accordance with
article 989 of the Civil Code. The right is vested, although conditioned upon the
adjudication of the corresponding hereditary portion." (Osorio v. Osorio and
Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their
hereditary rights in 1967 even if the order to partition the estate was issued only in
1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot be
considered to be effective. For a waiver to exist, three elements are essential: (1) the
existence of a right; (2) the knowledge of the existence thereof; and (3) an intention
to relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120).
The intention to waive a right or advantage must be shown clearly and convincingly,
and when the only proof of intention rests in what a party does, his act should be so
manifestly consistent with, and indicative of an intent to, voluntarily relinquish the
particular right or advantage that no other reasonable explanation of his conduct is
possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the waiver document
did not have the clear and convincing intention to relinquish their rights. Thus: (1)

On October 27, 1967, Fortunato, Tomas, and Amelia Borromeo filed a pleading
entitled "Compliance" wherein they submitted a proposal for the amicable
settlement of the case. In that Compliance, they proposed to concede to all the eight
(8) intestate heirs of Vito Borromeo all properties, personal and real, including all
cash and sums of money in the hands of the Special Administrator, as of October 31,
1967, not contested or claimed by them in any action then pending in the Court of
First Instance of Cebu. In turn, the heirs would waive and concede to them all the
14 contested lots. In this document, the respondent recognizes and concedes that the
petitioner, like the other signatories to the waiver document, is an heir of the
deceased Vito Borromeo, entitled to share in the estate. This shows that the "Waiver
of Hereditary Rights" was never meant to be what the respondent now purports it to
be. Had the intent been otherwise, there would not be any reason for Fortunato,
Tomas, and Amelia Borromeo to mention the heirs in the offer to settle the case
amicably, and offer to concede to them parts of the estate of the deceased; (2) On
April 21 and 30, 1969, the majority of the declared heirs executed an Agreement on
how the estate they inherited shall be distributed. This Agreement of Partition was
approved by the trial court on August 15, 1969; (3) On June 29, 1968, the petitioner,
among others, signed a document entitled Deed of Assignment" purporting to
transfer and assign in favor of the respondent and Tomas and Amelia Borromeo all
her (Patrocinio B. Herrera's) rights, interests, and participation as an intestate heir
in the estate of the deceased Vito Borromeo. The stated consideration for said
assignment was P100,000.00; (4) On the same date, June 29, 1968, the respondent
Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment)
in turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in
the same deed of assignment. The stated consideration was P50,000.00; (5) A
Cancellation of Deed of Assignment and Deed of Reconveyance was signed by Tomas
Borromeo and Amelia Borromeo on October 15, 1968, while Fortunato Borromeo
signed this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court had
jurisdiction to pass upon the validity of the waiver agreement. It must be noted that
in Special Proceedings No. 916-R the lower court disallowed the probate of the will
and declared it as fake. Upon appeal, this Court affirmed the decision of the lower
court on March 30, 1967, in G.R. No. L-18498. Subsequently, several parties came
before the lower court filing claims or petitions alleging themselves as heirs of the
intestate estate of Vito Borromeo. We see no impediment to the trial court in
exercising jurisdiction and trying the said claims or petitions. Moreover, the

jurisdiction of the trial court extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the estate.
In view of the foregoing, the questioned order of the trial court dated December
24, 1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order of the
Court of First Instance of Cebu, Branch II, dated December 24, 1974, declaring the
waiver document earlier discussed inG.R. No. 41171 valid. The appellate court
certified this case to this Court as the questions raised are all of law.
The appellants not only assail the validity of the waiver agreement but they also
question the jurisdiction of the lower court to hear and decide the action filed by
claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary right was executed on
July 31, 1967, Pilar Borromeo and her children did not yet possess or own any
hereditary right in the intestate estate of the deceased Vito Borromeo because said
hereditary right was only acquired and owned by them on April 10,1969, when the
estate was ordered distributed. They further argue that in contemplation of law,
there is no such contract of waiver of hereditary right in the present case because
there was no object, which is hereditary right, that could be the subject matter of
said waiver, and, therefore, said waiver of hereditary right was not only null and
void ab initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that without any
formal pleading filed by the lawyers of Fortunato Borromeo for the approval of the
waiver agreement and without notice to the parties concerned, two things which are
necessary so that the lower court would be vested with authority and jurisdiction to
hear and decide the validity of said waiver agreement, nevertheless, the lower court
set the hearing on September 25, 1973 and without asking for the requisite
pleading. This resulted in the issuance of the appealed order of December 24, 1974,
which approved the validity of the waiver agreement. The appellants contend that
this constitutes an error in the exercise of jurisdiction.

The appellee on the other hand, maintains that by waiving their hereditary rights
in favor of Fortunato Borromeo, the signatories to the waiver document tacitly and
irrevocably accepted the inheritance and by virtue of the same act, they lost their
rights because the rights from that moment on became vested in Fortunato
Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil Code there is
no need for a person to be declared as heir first before he can accept or repudiate an
inheritance. What is required is that he is certain of the death of the person from
whom he is to inherit, and of his right to the inheritance. At the time of the signing
of the waiver document on July 31, 1967, the signatories to the waiver document
were certain that Vito Borromeo was already dead and they were also certain of
their right to the inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not acquire
jurisdiction over the claim because of the alleged lack of a pleading invoking its
jurisdiction to decide the claim, the appellee asserts that on August 23, 1973, the
lower court issued an order specifically calling on all oppositors to the waiver
document to submit their comments within ten days from notice and setting the
same for hearing on September 25, 1973. The appellee also avers that the claim as
to a 5/9 share in the inheritance involves no question of title to property and,
therefore, the probate court can decide the question.
The issues in this case are similar to the issues raised in G.R. No. 41171. The
appellants in this case, who are all declared heirs of the late Vito Borromeo are
contesting the validity of the trial court's order dated December 24, 1974, declaring
Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo under the waiver
agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be
validated. The essential elements of a waiver, especially the clear and convincing
intention to relinquish hereditary rights, are not found in this case.
The October 27, 1967 proposal for an amicable settlement conceding to all the
eight (8) intestate heirs various properties in consideration for the heirs giving to
the respondent and to Tomas, and Amelia Borromeo the fourteen (14) contested lots

was filed inspite of the fact that on July 31, 1967, some of the heirs had allegedly
already waived or sold their hereditary rights to the respondent.
The agreement on how the estate is to be distributed, the June 29, 1968 deed of
assignment, the deed of reconveyance, and the subsequent cancellation of the deed
of assignment and deed of reconveyance all argue against the purported waiver of
hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No.
41171that the trial court acquired jurisdiction to pass upon the validity of the
waiver agreement because the trial court's jurisdiction extends to matters
incidental and collateral to the exercise of its recognized powers in handling the
settlement of the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative
of some of the heirs-distributees, praying for the immediate closure of Special
Proceeding No. 916-R. A similar motion dated May 29, 1979 was filed by Atty. Jose
Amadora. Both motions were grounded on the fact that there was nothing more to
be done after the payment of all the obligations of the estate since the order of
partition and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve
the aforesaid motions, petitioner Jose Cuenco Borromeo filed a petition for
mandamus before the Court of Appeals to compel the respondent judge to terminate
and close Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to pending motions to
compel the petitioner, as co-administrator, to submit an inventory of the real
properties of the estate and an accounting of the cash in his hands, pending claims
for attorney's fees, and that mandamus will not lie to compel the performance of a
discretionary function, the appellate court denied the petition on May 14, 1982. The
petitioner's motion for reconsideration was likewise denied for lack of merit. Hence,
this petition.

The petitioner's stand is that the inaction of the respondent judge on the motion
filed on April 28, 1972 for the closure of the administration proceeding cannot be
justified by the filing of the motion for inventory and accounting because the latter
motion was filed only on March 2, 1979. He claimed that under the then
Constitution, it is the duty of the respondent judge to decide or resolve a case or
matter within three months from the date of its submission.
The respondents contend that the motion to close the administration had already
been resolved when the respondent judge cancelled all settings of all incidents
previously set in his court in an order dated June 4, 1979, pursuant to the
resolution and restraining order issued by the Court of Appeals enjoining him to
maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with
the exception of Patrocinio B. Herrera, signed an agreement of partition of the
properties of the deceased Vito Borromeo which was approved by the trial court, in
its order dated August 15, 1969. In this same order, the trial court ordered the
administrator, Atty. Jesus Gaboya, Jr., to partition the properties of the deceased in
the way and manner they are divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of the
estate shall be segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p.
197, Rollo, G.R. No. 41171) his court has not finally distributed to the nine (9)
declared heirs the properties due to the following circumstances:
1. 1.The court's determination of the market value of the estate in order to segregate
the 40% reserved for attorney's fees;
2. 2.The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of
the 5/9 of the estate because of the waiver agreement signed by the heirs
representing the 5/9 group which is still pending resolution by this Court (G.R. No.
41171);

3. 3.The refusal of administrator Jose Cuenco Borromeo to render his accounting; and
1. 4.The claim of Tarcela Villegas for 1/2 of the estate causing annotations of notices
of lis pendens on the different titles of the properties of the estate.

Since there are still real properties of the estate that were not yet distributed to
some of the declared heirs, particularly the 5/9 group of heirs due to the pending
resolution of the waiver agreement, this Court in its resolution of June 15, 1983,
required the judge of the Court of First Instance of Cebu, Branch II, to expedite the
determination of Special Proceedings No. 916-R and ordered the co-administrator
Jose Cuenco Borromeo to submit an inventory of real properties of the estate and to
render an accounting of cash and bank deposits realized from rents of several
properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
1. 1.G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated
December 24, 1974;
2. 2.G.R. No. 63818, denying the petition for review seeking to modify the decision of
the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo
and ordering the remand of the case to the Executive Judge of the Regional Trial
Court of Cebu for re-raffling; and
3. 3.G.R. No. 65995, granting the petition to restrain the respondents from further
acting on any and all incidents in Special Proceedings No. 916-R because of the
affirmation of the decision of the Intermediate Appellate Court in G.R. No. 63818."
the trial court may now terminate and close Special Proceedings No. 916-R, subject
to the submission of an inventory of the real properties of the estate and an
accounting of the cash and bank deposits by the petitioner, as co-administrator of
the estate, if he has not yet done so, as required by this Court in its Resolution
dated June 15, 1983. This must be effected with all deliberate speed.

G.R. No. 63818

On June 9, 1979, respondents Jose Cuenco Borromeo and Petra O. Borromeo filed a
motion for inhibition in the Court of First Instance of Cebu, Branch II, presided over
by Judge Francisco P. Burgos to inhibit the judge from further acting in Special
Proceedings No. 916-R. The movants alleged, among others, the following:
xxx

xxx

xxx

1. "6.To keep the agitation to sell moving, Atty. Antigua filed a motion for the
production of the certificates of title and to deposit the same with the Branch Clerk
of Court, presumably for the ready inspection of interested buyers. Said motion was
granted by the Hon. Court in its order of October 2, 1978 which, however, became
the subject of various motions for reconsideration from heirs-distributees who
contended that as owners they cannot be deprived of their titles for the flimsy
reasons advanced by Atty. Antigua. In view of the motions for reconsideration, Atty.
Antigua ultimately withdraw his motions for production of titles.
2. "7.The incident concerning the production of titles triggered another incident
involving Atty. Raul H. Sesbreno who was then the counsel of herein movants Petra
O. Borromeo and Amelinda B. Talam. In connection with said incident, Atty.
Sesbreno filed a pleading which the Hon. Presiding Judge considered direct
contempt because, among others, Atty. Sesbreno insinuated that the Hon. Presiding
Judge stands to receive 'fat commission' from the sale of the entire property.
Indeed, Atty. Sesbreno was seriously in danger of being declared in contempt of
court with the dim prospect of suspension from the practice of his profession. But
obviously to extricate himself from the prospect of contempt and suspension, Atty.
Sesbreno chose repproachment and ultimately joined forces with Atty. Antigua, et
al., who, together, continued to harass administrator Jose Cuenco Borromeo.
xxx

xxx

xxx

1. "9.The herein movants are informed and so they allege, that a brother of the Hon.
Presiding Judge is married to a sister of Atty. Domingo L. Antigua.
2. "10.There is now a clear tug of war between Atty. Antigua, et al. who are agitating
for the sale of the entire estate or to buy out the individual heirs, on the one hand,
and the herein movants, on the other, who are not willing to sell their distributive
shares under the terms and conditions presently proposed. In this tug of war, a
pattern of harassment has become apparent against the herein movants, especially
Jose Cuenco Borromeo. Among the harassments employed by Atty. Antigua et al.
are the pending motions for the removal of administrator Jose Cuenco Borromeo,
the subpoena duces tecum issued to the bank which seeks to invade into the privacy
of the personal account of Jose Cuenco Borromeo, and the other matters mentioned
in paragraph 8 hereof. More harassment motions are expected until the herein
movants shall finally yield to the proposed sale. In such a situation, the herein
movants beg for an entirely independent and impartial judge to pass upon the
merits of said incidents.

1. "11.Should the Hon. Presiding Judge continue to sit and take cognizance of this
proceeding, including the incidents above-mentioned, he is liable to be
misunderstood as being biased in favor of Atty. Antigua, et al. and prejudiced
against the herein movants. Incidents which may create this impression need not
be enumerated herein. (pp. 39-41, Rollo)

The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for
reconsideration having been denied, the private respondents filed a petition for
certiorari and/or prohibition with preliminary injunction before the Intermediate
Appellate Court.
In the appellate court, the private respondents alleged, among others, the
following:
xxx

xxx

xxx

1. "16.With all due respect, petitioners regret the necessity of having to state herein
that respondent Hon. Francisco P. Burgos has shown undue interest in pursing the
sale initiated by Atty. Domingo L. Antigua, et al. Significantly, a brother of
respondent Hon. Francisco P. Burgos is married to a sister of Atty. Domingo L.
Antigua.
2. "17.Evidently, the proposed sale of the entire properties of the estate cannot be
legally done without the conformity of the heirsdistributees because the certificates
of title are already registered in their names. Hence, in pursuit of the agitation to
sell, respondent Hon. Francisco P. Burgos urged the heirs-distributees to sell the
entire property based on the rationale that proceeds thereof deposited in the bank
will earn interest more than the present income of the so called estate. Most of the
heirs-distributees, however, have been timid to say their piece. Only the 4/9 group
of heirs led by petitioner Jose Cuenco Borromeo have had the courage to stand up
and refusethe proposal to sell clearly favored by respondent Hon. Francisco
P.Burgos.
xxx

xxx

xxx

"20. Petitioners will refrain from discussing herein the merits of the shotgun motion of
Atty. Domingo L. Antigua as well as other incidents now pending in the court below which
smack of harassment against the herein petitioners. For, regardless of the merits of said
incidents, petitioners respectfully contend that it is highly improper for respondent Hon.

Francisco P. Burgos to continue to preside over Sp. Proc. No. 916-R by reason of the
following circumstances:
1. "(a)He has shown undue interest in the sale of the properties as initiated by Atty. Domingo L.
Antigua whose sister is married to a brother of respondent.
2. "(b)The proposed sale cannot be legally done without the conformity of the heirs-distributees,
and petitioners have openly refused the sale, to the great disappointment of respondent.
3. "(c)The shotgun motion of Atty. Antigua and similar incidents are clearly intended to harass
and embarrass administrator Jose Cuenco Borromeo in order to pressure him into acceding
to the proposed sale.
4. "(d)Respondent has shown bias and prejudice against petitioners by failing to resolve the
claim for attorney's fees filed by Jose Cuenco Borromeo and the late Crispin Borromeo.
Similar claims by the other lawyers were resolved by respondent after petitioners refused
the proposed sale." (pp. 41-43, Rollo)

On March 1, 1983, the appellate court rendered its decision granting the petition for
certiorari and/or prohibition and disqualifying Judge Francisco P. Burgos from
taking further cognizance of Special Proceedings No. 916-R. The court also ordered
the transmission of the records of the case to the Executive Judge of the Regional
Trial Court of Region VII for reraffling.
A motion for reconsideration of the decision was denied by the appellate court on
April 11, 1983. Hence, the present petition for review seeking to modify the decision
of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the case of Intestate Estate of Vito
Borromeo and orders the remand of the case to the Executive Judge of the Regional
Trial Court of Cebu for re-raffling.
The principal issue in this case has become moot and academic because Judge
Francisco P. Burgos decided to retire from the Regional Trial Court of Cebu
sometime before the latest reorganization of the judiciary. However, we decide the
petition on its merits for the guidance of the judge to whom this case will be
reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been harassed.
They contend that Judge Burgos has never shown unusual interest in the proposed
sale of the entire estate for P6,700,000.00 in favor of the buyers of Atty. Antigua.

They claim that this disinterest is shown by the judge's order of March 2, 1979
assessing the property of the estate at P15,000,000.00. They add that he only
ordered the administrator to sell so much of the properties of the estate to pay the
attorney's fees of the lawyers-claimants. To them, the inhibition of Judge Burgos
would have been unreasonable because his orders against the failure of Jose Cuenco
Borromeo, as administrator, to give an accounting and inventory of the estate were
all affirmed by the appellate court. They claim that the respondent court should also
have taken judicial notice of the resolution of this Court directing the said judge to
"expedite the settlement and adjudication of the case" in G.R. No. 54232. And
finally, they state that the disqualification of Judge Burgos would delay further the
closing of the administration proceeding as he is the only judge who is conversant
with the 47 volumes of the records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been harassed,
countered that Judge Burgos appointed Ricardo V. Reyes as co-administrator of the
estate on October 11, 1972, yet Borromeo was singled out to make an accounting of
what he was supposed to have received as rentals for the land upon which the
Juliana Trade Center is erected, from January, 1977 to February, 1982, inclusive,
without mentioning the withholding tax for the Bureau of Internal Revenue. In
order to bolster the agitation to sell as proposed by Domingo L. Antigua, Judge
Burgos invited Antonio Barredo, Jr., to a series of conferences from February 26 to
28, 1979. During the conferences, Atty. Antonio Barredo, Jr., offered to buy the
shares of the heirs-distributees presumably to cover up the projected sale initiated
by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed by
petitioner Domingo L. Antigua praying that Jose Cuenco Borromeo be required to
file an inventory when he has already filed one to account for cash, a report on
which the administrators had already rendered; and to appear and be examined
under oath in a proceeding conducted by Judge Burgos. It was also prayed that
subpoena duces tecum be issued for the appearance of the Manager of the
Consolidated Bank and Trust Co., bringing all the bank records in the name of Jose
Cuenco Borromeo jointly with his wife as well as the appearance of heirsdistributees Amelinda Borromeo Talam and another heir distributee Vitaliana
Borromeo. Simultaneously with the filing of the motion of Domingo Antigua, Atty.
Raul H. Sesbreno filed a request for the issuance of subpoena duces tecum to the
Manager of Consolidated Bank and Trust Co., Inc.; Register of Deeds of Cebu City;

Register of Deeds for the Province of Cebu and another subpoena duces tecumto
Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces tecum to
the Manager of the bank, the Register of Deeds for the City of Cebu, the Register of
Deeds for the Province of Cebu, and to Jose Cuenco Borromeo.
On the following day, March 3, 1979, Atty. Gaudioso V. Villagonzalo in behalf of
the heirs of Marcial Borromeo who had a common cause with Atty. Barredo, Jr.,
joined petitioner Domingo L. Antigua by filing a motion for relief of the
administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a
subpoena duces tecum to private respondent Jose Cuenco Borromeo to bring and
produce all the owners' copies of the titles in the court presided over by Judge
Burgos.
Consequently, the Branch Clerk of Court issued a subpoena duces
tecumcommanding Atty. Jose Cuenco Borromeo to bring and produce the titles in
court.
All the above-incidents were set for hearing on June 7, 1979 but on May 14, 1979,
before the date of the hearing, Judge Burgos issued an order denying the private
respondents' motion for reconsideration and the motion to quash the subpoena.
It was further argued by the private respondents that if Judge Francisco P.
Burgos is not inhibited or disqualified from trying Sp. Proc. No. 916-R, there would
be a miscarriage of justice because for the past twelve years, he had not done
anything towards the closure of the estate proceedings except to sell the properties
of the heirs-distributees as initiated by petitioner Domingo L. Antigua at 6.7 million
pesos while the Intestate Court had already evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for inhibition, more
specifically, the insistence of the trial judge to sell the entire estate at
P6,700,000.00, where 4/9 group of heirs objected, cannot easily be ignored. Suspicion
of partiality on the part of a trial judge must be avoided at all costs. In the case
of Bautista v. Rebueno (81 SCRA 535), this Court stated:

"x x x The Judge must maintain and preserve the trust and faith of the parties litigants. He
must hold himself above reproach and suspicion. At the very first sign of lack of faith and
trust to his actions, whether well grounded or not, the Judge has no other alternative but
inhibit himself from the case. A judge may not be legally prohibited from sitting in a
litigation, but when circumstances appear that will induce doubt to his honest actuations
and probity in favor of either party, or incite such state of mind, he should conduct a careful
self-examination. He should exercise his discretion in a way that the people's faith in the
Courts of Justice is not impaired. The better course for the Judge under such circumstances
is to disqualify himself. That way, he avoids being misunderstood, his reputation for probity
and objectivity is preserved. What is more important, the ideal of impartial administration
of justice is lived up to."

In this case, the fervent distrust of the private respondents is based on sound
reasons. As earlier stated, however, the petition for review seeking to modify the
decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits
Judge Francisco P. Burgos from further hearing the Intestate Estate of Vito
Borromeo case and ordering the remand of the case to the Executive Judge of the
Regional Trial Court for re-raffling should be DENIED for the decision is not only
valid but the issue itself has become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on any and all
incidents in Special Proceedings No. 916-R during the pendency of this petition and
G.R. No. 63818. They also pray that all acts of the respondents related to the said
special proceedings after March 1, 1983 when the respondent Judge was
disqualified by the appellate court be declared null and void and without force and
effect whatsoever.
The petitioners state that the respondent Judge has set for hearing all incidents
in Special Proceedings No. 916-R, including the reversion from the heirsdistributees to the estate, of the distributed properties already titled in their names
as early as 1970, notwithstanding the pending inhibition case elevated before this
Court which is docketed as G.R. No. 63818.
The petitioners further argue that the present status of Special Proceeding No.
916-R requires only the appraisal of the attorney's fees of the lawyers-claimants who

were individually hired by their respective heirs-clients, so their attorney's fees

should be legally charged against their respective clients and not against the estate.
On the other hand, the respondents maintain that the petition is a dilatory one
and barred by res judicata because this Court on July 8, 1981, in G.R. No.
54232 directed the respondent Judge to expedite the settlement and liquidation of
the decedent's estate. They claim that this resolution, which was already final and
executory, was in effect reversed and nullified by the Intermediate Appellate Court
in its caseACG.R. No. SP-11145when it granted the petition for certiorari
and/or prohibition and disqualified Judge Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916R as well as ordering the transmission of
the records of the case to the Executive Judge of the Regional Trial Court of Region
VII for re-raffling on March 1, 1983, which was appealed to this Court by means of a
Petition for Review (G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are not the
obligation of the estate but of the individual heirs who individually hired their
respective lawyers. The portion, therefore, of the Order of August 15, 1969,
segregating the exhorbitantly excessive amount of 40% of the market value of the
estate from which attorney's fees shall be taken and paid should be deleted.
Due to our affirmance of the decision of the Intermediate Appellate Court inG.R.
No. 63818, we grant the petition.
WHEREFORE,
1. (1)In G.R. No. 41171, the order of the respondent judge dated December 24, 1974,
declaring the respondent entitled to 5/9 of the estate of the late Vito Borromeo and
the order dated July 7, 1975, denying the petitioner's motion for reconsideration of
the aforementioned order are hereby SET ASIDE for being NULL and VOID;
2. (2)In G.R. No. 55000, the order of the trial court declaring the waiver document valid
is hereby SET ASIDE;
3. (3)In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of the
Intermediate Appellate Court disqualifying and ordering the inhibition of Judge
Francisco P. Burgos from further hearing Special Proceedings No. 916-R is declared
moot and academic. The judge who has taken over the sala of retired Judge
Francisco P. Burgos shall immediately conduct hearings with a view to terminating

the proceedings. In the event that the successor-judge is likewise disqualified, the
order of the Intermediate Appellate Court directing the Executive Judge of the
Regional Trial Court of Cebu to reraffle the case shall be implemented;
4. (4)In G.R. No. 65995, the petition is hereby GRANTED. The issue seeking to restrain
Judge Francisco P. Burgos from further acting in G.R. No. 63818 is MOOT and
ACADEMIC;

5. (5)In G.R. No. 62895, the trial court is hereby ordered to speedily terminate the close

Special Proceedings No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the cash and bank deposits by the
petitioner-administrator of the estate as required by this Court in its Resolution
dated June 15, 1983; and

1. (6)The portion of the Order of August 15, 1969, segregating 40% of the market value
of the estate from which attorney's fees shall be taken and paid should be, as it is
hereby DELETED. The lawyers should collect from the heirsdistributees who
individually hired them, attorney's fees according to the nature of the services
rendered but in amounts which should not exceed more than 20% of the market
value of the property the latter acquired from the estate as beneficiaries.

SO ORDERED.
Feliciano, Bidin and Corts, JJ.,concur.
Fernan (Chairman), No part. I appeared as counsel for one of the parties.
In G.R. Nos. 41171 and 55000, orders set aside; G.R. No. 63818, petition denied;
G.R. No. 65995, petition granted.
Notes.Although it is true that final orders in probate cases partake the nature
of a judgment in rem, binding upon the whole world, it does not follow therefrom
that said final orders, like any other judgment or final order, cannot within the
statutory period of prescription, be annulled upon the ground of extrinsic
fraud. (Vda. de Serrano us. Court of Appeals, 33 SCRA 865.)
In extrajudicial partition, court approved is imperative, and the heirs cannot just
divest the court of its jurisdiction over the estate and over their persons, by the mere
act of assignment and desistance. (Gutierrez us. Villegas, 5 SCRA 313.)

o0o

No. L-46903. July 23, 1987.

BUHAY DE ROMA, petitioner, vs. THE HONORABLE COURT OF APPEALS and

FELICIDAD CARINGAL, as Guardian of Rosalinda de Roma, respondents.
Civil Law; Succession; Intestacy; Collation; Fact that a donation is irrevocable does not
necessarily exempt the donated properties from collation as required under Art. 1061, Civil
Code; Given the precise language of the deed of donation the decedent-donor would have
included an express prohibition to collate if that had been the donor's intention.We agree
with the respondent court that there is nothing in the above provisions expressly
prohibiting the collation of the donated properties. As the said court correctly observed, the
phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the
donation as "irrevocable" and should not be construed as an express prohibition against
collation. The fact that a donation is irrevocable does not necessarily exempt the subject
thereof from the collation required under Article 1061. We surmise from the use of such
terms as "legitime" and "free portion" in the deed of donation that it was prepared by a
lawyer, and we may also presume he understood the legal consequences of the donation
being made. It is reasonable to suppose, given the precise language of the document, that he
would have included therein an express prohibition to collate if that had been the donor's
intention. Anything less than such express prohibition will not suffice under the clear
language of Article 1062.
Same; Same; Same; Same; Intention to exempt donated properties from collation should
be expressed plainly and unequivocally as an exception to the general rule in Art. 1062, Civil
Code; Absent such a clear indication of that intention, the rule not the exception should be

applied.The intention to exempt from collation should be expressed plainly and

unequivocally as an exception to the general rule announced in Article 1062. Absent such a
clear indication of that intention, we apply not the exception but the rule, which is
categorical enough.
Constitutional Law; Judiciary; Decisions; Provision in Art. X, Sec. 11 (1) of the 1973
Constitution fixing the period for the Court of Appeals to decide cases within the 12-month
period is merely directory, and failure to decide would not deprive the corresponding courts
of jurisdiction or render their decisions invalid; Provision reworded in Art. VIII, Sec. 5, 1987
Constitution which impresses upon courts the need for speedy disposition of cases, but
serious studies and efforts are now being taken by the Supreme CourtThere is no need to
dwell long on the other error assigned by the petitioner regarding the decision of the
appealed case by the respondent court beyond the 12month period prescribed by Article X,
Section 11 (1) of the 1973 Constitution. As we held in Marcelino v. Cruz, the said provision
was merely directory and failure to decide on time would not deprive the corresponding
courts of jurisdiction or render their decisions invalid. It is worth stressing that the
aforementioned provision has now been reworded in Article VIII, Section 15, of the 1987
Constitution, which also impresses upon the courts of justice, indeed with greater urgency,
the need for the speedy disposition of the cases that have been clogging their dockets these
many years. Serious studies and efforts are now being taken by the Court to meet that need.

PETITION to review the order of the Court of Appeals.

The facts are stated in the opinion of the Court.
CRUZ, J.:
Candelaria de Roma had two legally adopted daughters, Buhay de Roma and
Rosalinda de Roma. She died intestate on April 30, 1971, and administration
proceedings were instituted in the Court of First Instance of Laguna by the private
respondent as guardian of Rosalinda. Buhay was appointed administratrix and in
due time filed an inventory of the estate. This was opposed by Rosalinda on the
ground that certain properties earlier donated by Candelaria to Buhay, and the
fruits thereof, had not been included.

The properties in question consisted of seven parcels of coconut land worth

P10,297.50. There is no dispute regarding their valuation; what the parties cannot
2

agree upon is whether these lands are subject to collation. The private respondent
vigorously argues that it is, conformably to Article 1061 of the Civil Code. Buhay, for
her part, citing Article 1062, claims she has no obligation to collate because the
decedent prohibited such collation and the donation was not officious.
The two articles provide as follows:
"Article 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring
into the mass of the estate any property or right which he may have received from the
decedent during the lifetime of the latter, by way of donation, or any other gratuitous title,
in order that it may be computed in the determination of the legitime of each heir, and in
the account of the partition."
"Article 1062. Collation shall not take place among compulsory heirs if the donor should
have so expressly provided, or if the donee should repudiate the inheritance, unless the
donation should be reduced as inofficious."

The issue was resolved in favor of the petitioner by the trial court, which held that
**

the decedent, when she made the donation in favor of Buhay, expressly prohibited
collation. Moreover, the donation did not impair the legitimes of the two adopted
daughters as it could be accommodated in, and in fact was imputed to, the free
portion of Candelaria's estate.

On appeal, the order of the trial court was reversed, the respondent
court holding that the deed of donation contained no express prohibition to collate
***

as an exception to Article 1062. Accordingly, it ordered collation and equally divided

the net estate of the decedent, including the fruits of the donated property, between
Buhay and Rosalinda.

The pertinent portions of the deed of donation are as f ollows:

"IKALAWA. Na alang-alang sa aking pagmamahal, pagtingin at pagsisilbi sa akin ng aking
anak na si BUHAY DE ROMA, kasal kay Arabella Castaneda, may karampatang gulang,

mamamayang Pilipino at naninirahan at may pahatirang-sulat din dito sa Lungsod ng San

Pablo sa pamamagitan ng kasulatang ito ay kusang-loob kong ibinibigay, ipinagkakaloob at
inililipat sa nabanggit na BUHAY DE ROMA, sa kanyang mga kahalili at tagapagmana, sa
pamamagitan ng pagbibigay na di na mababawing muli, ang lahat ng mga lagay ng lupa na
sinasabi sa itaas, sa ilalim ng kasunduan na ngayon pa ay siya na ang nagmamay-aring
tunay ng mga lupang ito at kanya nang maaring ipalipat ang mga hoja declaratoria ng mga
lupang ito sa kanyang pangalan, datapwa't samantalang ako ay nabubuhay, ay ako rin ang
makikinabang sa mga mapuputi at mamomosesion sa mga nasabing lupa;
"IKATLO. Na pinagtibay ko na ako ay marami pang ibang mga pag-aari sa sapat pang
aking ikabuhay at sa pagbibigay kong ito ay hindi masisira ang legitima ng mga tao na
dapat magmana sa akin, sapagkat ang mga lupang sinasabi sa itaas ay bahagui ng aking
kabuhayan na ako ay may layang ipamigay kahit na kaninong tao na kung tawagin ay Libre
Disposicion." '

We agree with the respondent court that there is nothing in the above provisions
expressly prohibiting the collation of the donated properties. As the said court
correctly observed, the phrase "sa pamamagitan ng pagbibigay na di na
mababawing muli" merely described the donation as "irrevocable" and should not be
construed as an express prohibition against collation. The fact that a donation is
6

irrevocable does not necessarily exempt the subject thereof from the collation
required under Article 1061.
We surmise from the use of such terms as "legitime" and "free portion" in the
deed of donation that it was prepared by a lawyer, and we may also presume he
understood the legal consequences of the donation being made. It is reasonable to
suppose, given the precise language of the document, that he would have included
therein an express prohibition to collate if that had been the donor's intention.
Anything less than such express prohibition will not suffice under the clear
language of Article 1062. The suggestion that there was an implied prohibition
because the properties donated were imputable to the free portion of the decedent's
estate merits little consideration. Imputation is not the question here, nor is it

claimed that the disputed donation is officious. The sole issue is whether or not
there was an express prohibition to collate, and we see none.
The intention to exempt from collation should be expressed plainly and
unequivocally as an exception to the general rule announced in Article 1062. Absent
such a clear indication of that intention, we apply not the exception but the rule,
which is categorical enough.
There is no need to dwell long on the other error assigned by the petitioner
regarding the decision of the appealed case by the respondent court beyond the 12month period prescribed by Article X, Section 11 (1) of the 1973 Constitution. As we
held in Marcelino v. Cruz, the said provision was merely directory and failure to
7

decide on time would not deprive the corresponding courts of jurisdiction or render
their decisions invalid.
It is worth stressing that the aforementioned provision has now been reworded in
Article VIII, Section 15, of the 1987 Constitution, which also impresses upon the
courts of justice, indeed with greater urgency, the need for the speedy disposition of
the cases that have been clogging their dockets these many years. Serious studies
and efforts are now being taken by the Court to meet that need.
WHEREFORE, the appealed decision is AFFIRMED in toto, with costs against the petitioner. It
is so ordered.
Teehankee (C.J.), Narvasa, Paras and Gancayco, JJ., concur.
Decision affirmed.
Notes.A rule which would require a judge to resolve a motion for execution within 15 days
would be difficult, if not impossible to follow. (Universal Far East Corporation vs. Court of
Appeals, 131 SCRA 642.)
Failure of judge to decide a case within 30 days does notdivest him of his jurisdiction. (Marcelino
vs. Cruz, Jr., 121 SCRA 51.)

G.R. No. 141882. March 11, 2005.

J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES,

petitioner, vs. ANTONIO BALANSAG and HILARIA CADAYDAY, respondents.
Civil Law; Contracts; All things, even future ones which are not outside the commerce of
man may be the object of a contract, except that no contract may be entered into with respect
to future inheritance, and the exception to the exception is the partition inter vivos referred to
in Article 1080.Well-entrenched is the rule that all things, even future ones, which are not
outside the commerce of man may be the object of a contract. The exception is that no
contract may be entered into with respect to future inheritance, and the exception to the
exception is the partition inter vivosreferred to in Article 1080.
Same; Legitimes; Preterition; Preterition is defined as the omission of the heir in the
will, either by not naming him at all or, while mentioning him as father, son, etc., by not
instituting him as heir without disinheriting him expressly, nor assigning to him some part
of the properties; It is the total omission of a compulsory heir in the direct line from
inheritance; There is no preterition where the testator allotted to a descendant a share less
than the legitime, since there was no total omission of a forced heir.Article 854 provides
that the preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious. Manresa defines preterition as the omission of the heir in
the will, either by not naming him at all or, while mentioning him as father, son, etc., by not
instituting him as heir without disinheriting him expressly, nor assigning to him some part
of the properties. It is the total omission of a compulsory heir in the direct line from
inheritance. It consists in the silence of the testator with regard to a compulsory heir,
omitting him in thetestament, either by not mentioning him at all, or by not giving him
anything in the hereditary property but without expressly disinheriting him, even if he is
mentioned in the will in the latter case. But there is no preterition where the testator
allotted to a descendant a share less than the legitime, since there was no total omission of
a forced heir.
Same; Donation; Title to immovable property does not pass from the donor to the donee
by virtue of a deed of donation until and unless it has been accepted in a public instrument
and the donor duly notified thereof.In Sumipat, et al. v. Banga, et al.,this Court declared
that title to immovable property does not pass from the donor to the donee by virtue of a
deed of donation until and unless it has been accepted in a public instrument and the donor
duly notified thereof. The acceptance may be made in the very same instrument of donation.
If the acceptance does not appear in the same document, it must be made in another. Where
the deed of donation fails to show the acceptance, or where the formal notice of the

acceptance, made in a separate instrument, is either not given to the donor or else not noted
in the deed of donation and in the separate acceptance, the donation is null and void.
Same; Land Titles; A certificate of title serves as evidence of an indefeasible title to the
property in favor of the person whose name appears therein.Well-settled, of course, is the
rule that a certificate of title serves as evidence of an indefeasible title to the property in
favor of the person whose name appears therein. A certificate of title accumulates in one
document a precise and correct statement of the exact status of the fee held by its owner.
The certificate, in the absence of fraud, is the evidence of title and shows exactly the real
interest of its owner.
Same; Same; To successfully assail the juristic value of what a Torrens title establishes,
a sufficient and convincing quantum of evidence on the defect of the title must be adduced to
overcome the predisposition in law in favor of a holder of a Torrens title.To successfully
assail the juristic value of what a Torrens title establishes, a sufficient and convincing
quantum of evidence on the defect of the title must be adduced to overcome the
predisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate
courts ruling, the appearance of a mere thumbmark of Don Julian instead of his signature
in theSupplemental Deed would not affect the validity of petitioners title for this Court has
ruled that a thumbmark is a recognized mode of signature.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Epifanio Sedigo, Sr. and Guingona & Sedigo for petitioner.
Jose A. Arbas for respondents.
TINGA, J.:
Once again, the Court is faced with the perennial conflict of property claims
between two sets of heirs, a conflict ironically made grievous by the fact that the
decedent in this case had resorted to great lengths to allocate which properties
should go to which set of heirs.
This is a Rule 45 petition assailing the Decision dated 30 September 1999 of the
Court of Appeals which reversed theDecision dated 7 May 1993 of the Regional
Trial Court (RTC), Branch 45, of Bais City, Negros Oriental.
1

The factual antecedents follow.

Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia
Baena (Antonia), and after her death, with Milagros Donio Teves (Milagros Donio).
Don Julian had two children with Antonia, namely: Josefa Teves Escao (Josefa)
and Emilio Teves (Emilio). He had also four (4) children with Milagros Donio,
namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose
Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro Reyes Teves (Pedro).
3

The present controversy involves a parcel of land covering nine hundred and fiftyfour (954) square meters, known as Lot No. 63 of the Bais Cadastre, which was
originally registered in the name of the conjugal partnership of Don Julian and
Antonia under Original Certificate of Title (OCT) No. 5203 of the Registry of Deeds
of Bais City. When Antonia died, the land was among the properties involved in an
action for partition and damages docketed as Civil Case No. 3443 entitled Josefa
Teves Escao v. Julian Teves, Emilio B. Teves, et al. Milagros Donio, the second
wife of Don Julian, participated as an intervenor. Thereafter, the parties to the case
entered into a Compromise Agreement which embodied the partition of all the
properties of Don Julian.
4

On the basis of the compromise agreement and approving the same, the Court of
First Instance (CFI) of Negros Oriental, 12th Judicial District, rendered
a Decision dated 31 January 1964. The CFI decision declared a tract of land known
as Hacienda Medalla Milagrosa as property owned in common by Don Julian and
his two (2) children of the first marriage. The property was to remain undivided
during the lifetime of Don Julian. Josefa and Emilio likewise were given other
properties at Bais, including the electric plant, the movie property, the commercial
areas, and the house where Don Julian was living. The remainder of the properties
was retained by Don Julian, including Lot No. 63.
6

Paragraph 13 of the Compromise Agreement, at the heart of the present dispute,

lays down the effect of the eventual death of Don Julian vis--vis his heirs:
13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to
Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda
Medalla Milagrosa together with all its accessories and accessions) shall be understood as
including not only their one-half share which they inherited from their mother but also the
legitimes and other successional rights which would correspond to them of the other half

belonging to their father, Julian L. Teves. In other words, the properties now selected
and adjudicated to Julian L. Teves (not including his share in the Hacienda

Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of

Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two
acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two
legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis
supplied)

On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of

Assignment of Assets with Assumption of Liabilities in favor of J.L.T. Agro, Inc.
(petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed an
instrument entitled Supplemental to the Deed of Assignment of Assets with the
Assumption of Liabilities (Supplemental Deed) dated 31 July 1973. This instrument
which constitutes a supplement to the earlier deed of assignment transferred
ownership over Lot No. 63, among other properties, in favor of petitioner. On 14
April 1974, Don Julian died intestate.
8

10

On the strength of the Supplemental Deed in its favor, petitioner sought the
registration of the subject lot in its name. A court, so it appeared, issued an
order cancelling OCT No. 5203 in the name of spouses Don Julian and Antonia on
12 November 1979, and on the same date TCT No. T-375 was issued in the name of
petitioner. Since then, petitioner has been paying taxes assessed on the subject lot.
11

12

13

Meanwhile, Milagros Donio and her children had immediately taken possession
over the subject lot after the execution of the Compromise Agreement. In 1974, they
entered into a yearly lease agreement with spouses Antonio Balansag and Hilaria
Cadayday, respondents herein. On Lot No. 63, respondents temporarily established
their home and constructed a lumber yard. Subsequently, Milagros Donio and her
children executed a Deed of Extrajudicial Partition of Real Estate dated 18 March
1980. In the deed of partition, Lot No. 63 was allotted to Milagros Donio and her two
(2) children, Maria Evelyn and Jose Catalino. Unaware that the subject lot was
already registered in the name of petitioner in 1979, respondents bought Lot No. 63
from Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate dated
9 November 1983.
14

15

16

At the Register of Deeds while trying to register the deed of absolute sale,
respondents discovered that the lot was already titled in the name of petitioner.
Thus, they failed to register the deed.
17

Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch
45 of Bais City, seeking the declaration of nullity and cancellation of TCT No. T-375
in the name of petitioner and the transfer of the title to Lot No. 63 in their names,
plus damages.
18

After hearing, the trial court dismissed the complaint filed by respondents. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, by preponderance of evidence, this Court finds
judgment in favor of the defendant and against the plaintiff, and thus hereby orders:
1. (1)That complaint be dismissed;
2. (2)That plaintiffs vacate the subject land, particularly identified as Lot No. 63
registered under Transfer Certificate of Title No. T-375;
3. (3)That plaintiffs pay costs.
Finding no basis on the counterclaim by defendant, the same is hereby ordered
dismissed.
19

The trial court ruled that the resolution of the case specifically hinged on the
interpretation of paragraph 13 of the Compromise Agreement. It added that the
direct adjudication of the properties listed in the Compromise Agreement was only in
favor of Don Julian and his two children by the first marriage, Josefa and
Emilio. Paragraph 13 served only as an amplification of the terms of the
adjudication in favor of Don Julian and his two children by the first marriage.
20

21

According to the trial court, the properties adjudicated in favor of Josefa and
Emilio comprised their shares in the estate of their deceased mother Antonia, as
well as their potential share in the estate of Don Julian upon the latters death.
Thus, upon Don Julians death, Josefa and Emilio could not claim any share in his
estate, except their proper share in the Hacienda Medalla Milagrosa which was
adjudicated in favor of Don Julian in the Compromise Agreement. As such, the
properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa,
were free from the forced legitimary rights of Josefa and Emilio, and Don Julian
was under no impediment to allocate the subject lot, among his other properties, to
Milagros Donio and her four (4) children.
22

The trial court further stressed that with the use of the words shall be, the
adjudication in favor of Milagros Donio and her four (4) children was not final and
operative, as the lot was still subject to future disposition by Don Julian during his
lifetime. It cited paragraph 14 of theCompromise Agreement in support of his
conclusion. With Lot No. 63 being the conjugal property of Don Julian and Antonia,
the trial court also declared that Milagros Donio and her children had no hereditary
rights thereto except as to the conjugal share of Don Julian, which they could claim
only upon the death of the latter.
23

24

25

26

The trial court ruled that at the time of Don Julians death on 14 April 1974, Lot
No. 63 was no longer a part of his estate since he had earlier assigned it to
petitioner on 31 July 1973. Consequently, the lot could not be a proper subject of
extrajudicial partition by Milagros Donio and her children, and not being the owners
they could not have sold it. Had respondents exercised prudence before buying the
subject lot by investigating the registration of the same with the Registry of Deeds,
they would have discovered that five (5) years earlier, OCT No. 5203 had already
been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial
court added.
27

The Court of Appeals, however, reversed the trial courts decision. The decretal
part of the appellate decision reads:
WHEREFORE, premises considered, the decision appealed from is hereby REVERSED
and SET ASIDE and a new one is entered declaring the Transfer Certificate of Title No. T375 registered in the name of J.L.T. Agro, Inc. as null and void. With costs against
defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves.
SO ORDERED.

28

Per the appellate court, the Compromise Agreementincorporated in CFI decision

dated 31 January 1964, particularly paragraph 13 thereof, determined, adjudicated
and reserved to Don Julians two sets of heirs their future legitimes in his estate
except as regards his (Don Julians) share in Hacienda Medalla Milagrosa. The two
sets of heirs acquired full ownership and possession of the properties respectively
adjudicated to them in the CFI decision and Don Julian himself could no longer
dispose of the same, including Lot No. 63. The disposition in the CFI decision
constitutes res judicata. Don Julian could have disposed of only his conjugal share
in the Hacienda Medalla Milagrosa.
29

30

31

The appellate court likewise emphasized that nobody in his right judgment would
preterit his legal heirs by simply executing a document like the Supplemental
Deed which practically covers all properties which Don Julian had reserved in favor
of his heirs from the second marriage. It also found out that the blanks reserved for
the Book No. and Page No. at the upper right corner of TCT No. T-375, to identify
the exact location where the said title was registered or transferred, were not filled
up, thereby indicating that the TCT is spurious and of dubious origin.
32

Aggrieved by the appellate courts decision, petitioner elevated it to this

Court via a petition for review on certiorari, raising pure questions of law.
Before this Court, petitioner assigns as errors the following rulings of the
appellate court, to wit: (a) that future legitime can be determined, adjudicated and
reserved prior to the death of Don Julian; (b) that Don Julian had no right to
dispose of or assign Lot No. 63 to petitioner because he reserved the same for his
heirs from the second marriage pursuant to the Compromise Agreement; (c) that
the Supplemental Deed was tantamount to a preterition of his heirs from the second
marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not
containing entries on the Book No. and Page No.
33

While most of petitioners legal arguments have merit, the application of the
appropriate provisions of law to the facts borne out by the evidence on record
nonetheless warrants the affirmance of the result reached by the Court of Appeals
in favor of respondents.
Being the key adjudicative provision, paragraph 13 of the Compromise
Agreement has to be quoted again:
13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa
Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda
Medalla Milagrosa together with all its accessories and accessions) shall be understood as
including not only their one-half share which they inherited from their mother but also the
legitimes and other successional rights which would correspond to them of the other half
belonging to their father, Julian L. Teves. In other words, the properties now selected
and adjudicated to Julian L. Teves (not including his share in the Hacienda
Medalla Milagrosa) shall exclusively be adjudicated to the wife in second
marriage of Julian L. Teves and his four minor children, namely, Milagros Donio
Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro

Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose
Catalino Donio Teves.(Emphasis supplied)

With the quoted paragraph as basis, the Court of Appeals ruled that the
adjudication in favor of the heirs of Don Julian from the second marriage became
automatically operative upon the approval of the Compromise Agreement, thereby
vesting on them the right to validly dispose of Lot No. 63 in favor of respondents.
Petitioner argues that the appellate court erred in holding that future legitime
can be determined, adjudicated and reserved prior to the death of Don Julian. The
Court agrees. Our declaration in Blas v. Santos is relevant, where we defined
future inheritance as any property or right not in existence or capable of
34

determination at the time of thecontract, that a person may in the future

acquire by succession. Article 1347 of the New Civil Code explicitly provides:
ART. 1347. All things which are not outside the commerce of men, including future things,
may be the object of a contract. All rights which are not intransmissible may also be the
object of contracts.
No contract may be entered into upon future inheritance except in cases
expressly authorized by law.
All services which are not contrary to law, morals, good customs, public order or public
policy may likewise be the object of a contract.

Well-entrenched is the rule that all things, even future ones, which are not outside
the commerce of man may be the object of a contract. The exception is that no
contract may be entered into with respect to future inheritance, and the exception to
the exception is the partition inter vivosreferred to in Article 1080.
35

For the inheritance to be considered future, the succession must not have been
opened at the time of the contract. A contract may be classified as a contract upon
future inheritance, prohibited under the second paragraph of Article 1347, where
the following requisites concur:
36

1. (1)That the succession has not yet been opened;

2. (2)That the object of the contract forms part of the inheritance; and

3. (3)That the promissor has, with respect to the object, an expectancy of a right which
is purely hereditary in nature.
37

The first paragraph of Article 1080, which provides the exception to the exception
and therefore aligns with the general rule on future things, reads:
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will,
such partition shall be respected, insofar as it does not prejudice the legitime of the
compulsory heirs.
....

In interpreting this provision, Justice Edgardo Paras advanced the opinion that if
the partition is made by an actinter vivos, no formalities are prescribed by the
Article. The partition will of course be effective only after death. It does not
38

necessarily require the formalities of a will for after all it is not the partition that is
the mode of acquiring ownership. Neither will the formalities of a donation be
required since donation will not be the mode of acquiring the ownership here after
death; since no will has been made it follows that the mode will be succession
(intestate succession). Besides, the partition here is merely the physical
determination of the part to be given to each heir.
39

The historical antecedent of Article 1080 of the New Civil Code is Article 1056 of
the old Civil Code. The only change in the provision is that Article 1080 now permits
any person (not a testator, as under the old law) to partition his estate by act inter
vivos. This was intended to abrogate the then prevailing doctrine that for a testator
to partition his estate by an act inter vivos, he must first make a will with all the
formalities provided by law.
40

41

Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to
partition inter vivos his property, and distribute them among his heirs, and this
partition is neither a donation nor a testament, but an instrument of a
special character, sui

generis, which

is

revocable

at

any

time

by the causante during his lifetime, and does not operate as a conveyance of
title until his death. It derives its binding force on the heirs from the respect due
to the will of the owner of the property, limited only by his creditors and the
intangibility of the legitime of the forced heirs.
42

The partition inter vivos of the properties of Don Julian is undoubtedly valid
pursuant to Article 1347. However, considering that it would become legally
operative only upon the death of Don Julian, the right of his heirs from the second
marriage to the properties adjudicated to him under the compromise agreement was
but a mere expectancy. It was a bare hope of succession to the property of their
father. Being the prospect of a future acquisition, the interest by its nature was
inchoate. It had no attribute of property, and the interest to which it related was at
the time nonexistent and might never exist.
43

Evidently, at the time of the execution of the deed of assignment covering Lot No.
63 in favor of petitioner, Don Julian remained the owner of the property since
ownership over the subject lot would only pass to his heirs from the second marriage
at the time of his death. Thus, as the owner of the subject lot, Don Julian retained
the absolute right to dispose of it during his lifetime. His right cannot be challenged
by Milagros Donio and her children on the ground that it had already been
adjudicated to them by virtue of the compromise agreement.
Emerging as the crucial question in this case is whether Don Julian had validly
transferred ownership of the subject lot during his lifetime. The lower court ruled
that he had done so through the Supplemental Deed. The appellate court disagreed,
holding that the Supplemental Deed is not valid, containing as it does a prohibited
preterition of Don Julians heirs from the second marriage. Petitioner contends that
the ruling of the Court of Appeals is erroneous. The contention is well-founded.
Article 854 provides that the preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the execution of the
will or born after the death of the testator, shall annul the institution of heir; but
the devises and legacies shall be valid insofar as they are not inofficious. Manresa
defines preterition as the omission of the heir in the will, either by not naming him
at all or, while mentioning him as father, son, etc., by not instituting him as heir
without disinheriting him expressly, nor assigning to him some part of the
properties. It is the total omission of a compulsory heir in the direct line from
inheritance. It consists in the silence of the testator with regard to a compulsory
heir, omitting him in the testament, either by not mentioning him at all, or by not
44

45

giving him anything in the hereditary property but without expressly disinheriting
him, even if he is mentioned in the will in the latter case. But there is no preterition
46

where the testator allotted to a descendant a share less than the legitime, since
there was no total omission of a forced heir.
47

In the case at bar, Don Julian did not execute a will since what he resorted to
was a partition inter vivos of his properties, as evidenced by the court
approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of
preterition prior to the death of Don Julian in the absence of a will depriving a legal
heir of his legitime. Besides, there are other properties which the heirs from the
second marriage could inherit from Don Julian upon his death. A couple of
provisions in the Compromise Agreement are indicative of Don Julians desire along
this line. Hence, the total omission from inheritance of Don Julians heirs from the
second marriage, a requirement for preterition to exist, is hardly imaginable as it is
unfounded.
48

Despite the debunking of respondents argument on preterition, still the petition

would ultimately rise or fall on whether there was a valid transfer effected by Don
Julian to petitioner. Notably, Don Julian was also the president and director of
petitioner, and his daughter from the first marriage, Josefa, was the treasurer
thereof. There is of course no legal prohibition against such a transfer to a family
corporation. Yet close scrutiny is in order, especially considering that such transfer
would remove Lot No. 63 from the estate from which Milagros and her children
could inherit. Both the alleged transfer deed and the title which necessarily must
have emanated from it have to be subjected to incisive and detailed examination.
Well-settled, of course, is the rule that a certificate of title serves as evidence of
an indefeasible title to the property in favor of the person whose name appears
therein. A certificate of title accumulates in one document a precise and correct
statement of the exact status of the fee held by its owner. The certificate, in the
absence of fraud, is the evidence of title and shows exactly the real interest of its
owner.
49

50

To successfully assail the juristic value of what a Torrens title establishes, a

sufficient and convincing quantum of evidence on the defect of the title must be
adduced to overcome the predisposition in law in favor of a holder of a Torrens title.
Thus, contrary to the appellate courts ruling, the appearance of a mere thumbmark
of Don Julian instead of his signature in the Supplemental Deed would not affect the

validity of petitioners title for this Court has ruled that a thumbmark is a
recognized mode of signature.
51

The truth, however, is that the replacement of OCT No. 5203 in the name of
Julian by T.C.T. No. T-375 is marred by a grave irregularity which is also an
illegality, as it contravenes the orthodox, conventional and normal process
established by law. And, worse still, the illegality is reflected on the face of both
titles. Where, as in this case, the transferee relies on a voluntary instrument to
secure the issuance of a new title in his name such instrument has to be presented
to the Registry of Deeds. This is evident from Sections 53 and 57 of Presidential
Decree (P.D.) No. 1529 or the Property Registration Decree. The sections read, thus:
SEC. 53. Presentation of owners duplicate upon entry of new certificate.No voluntary
instrument shall be registered by the Register of Deeds unless the owners duplicate
certificate ispresented with such instrument, except in cases expressly provided for in
this Decree or upon order of the court, for cause shown. (Emphasis supplied)
....
SEC. 57. Procedure in registration of conveyances.An owner desiring to convey his
registered land in fee simple shall execute and register a deed of conveyance in a form
sufficient in law. The Register of Deeds shall thereafter make out in the registration book
a new certificate of title to the grantee and shall prepare and deliver to him an owners
duplicate certificate. The Register of Deeds shall note upon the original and duplicate
certificate the date of transfer, the volume and page of the registration book in which the
new certificate is registered and a reference by number to the last preceding certificate. The
original and the owners duplicate of the grantors certificate shall be stamped
cancelled. The deed of conveyance shall be filed and endorsed with the number
and

the

place

of

registration

of

the

certificate

of

title

of

the

land

conveyed. (Emphasis supplied)

As petitioner bases its right to the subject lot on theSupplemental Deed, it should
have presented it to the Register of Deeds to secure the transfer of the title in its
name. Apparently, it had not done so. There is nothing on OCT No. 5203 or on the
succeeding TCT No. T-375 either which shows that it had presented
the Supplemental Deed. In fact, there is absolutely no mention of a reference to said
document in the original and transfer certificates of title. It is in this regard that
the finding of the Court of Appeals concerning the absence of entries on the blanks

intended for the Book No. and Page No. gains significant relevance. Indeed, this
aspect fortifies the conclusion that the cancellation of OCT No. 5203 and the
consequent issuance of TCT No. T-375 in its place are not predicated on a valid
transaction.
What appears instead on OCT No. 5203 is the following pertinent entry:
Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC.
CONDITIONS: Lost owners duplicate is hereby cancelled, and null and void
and a new Certificate of Title No. 375 is issued per Order of the Court of First
Instanceon file in this office.
Date of Instrument: November 12, 1979
Date of Inscription: Nov. 12, 1979 4:00 P.M.
(SGD.) MANUEL C. MONTESA
Acting Deputy Register of Deeds II
(Emphasis supplied)
52

What the entry indicates is that the owners duplicate of OCT No. 5203 was lost, a
petition for the reconstitution of the said owners duplicate was filed in court, and
the court issued an order for the reconstitution of the owners duplicate and its
replacement with a new one. But if the entry is to be believed, the court concerned
(CFI, according to the entry) issued an order for the issuance of a new title which is
TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of
Deeds had not been lost.
Going by the legal, accepted and normal process, the reconstitution court may
order the reconstitution and replacement of the lost title only, nothing else. Since
what was lost is the owners copy of OCT No. 5203, only that owners copy could be
ordered replaced. Thus, the Register of Deeds exceeded his authority in issuing not
just a reconstituted owners copy of the original certificate of title but a new transfer
certificate of title in place of the original certificate of title. But if the court order, as
the entry intimates, directed the issuance of a new transfer certificate of titleeven
designating the very number of the new transfer certificate of title itselfthe order
would be patently unlawful. A court cannot legally order the cancellation and

replacement of the original of the O.C.T. which has not been lost, as the petition for
reconstitution is premised on the loss merely of the owners duplicate of the OCT.
53

Apparently, petitioner had resorted to the court order as a convenient contrivance

to effect the transfer of title to the subject lot in its name, instead of
the Supplemental Deedwhich should be its proper course of action. It was so
constrained to do because the Supplemental Deed does not constitute a deed of
conveyance of the registered land in fee simple in a form sufficient in law, as
required by Section 57 of P.D. No. 1529.
A plain reading of the pertinent provisions of theSupplemental Deed discloses
that the assignment is not supported by any consideration. The provision reads:
....
WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities
executed by Julian L. Teves, Emilio B. Teves and Josefa T. Escao at Dumaguete City on
16th day of November 1972 and ratified in the City of Dumaguete before Notary Public
Lenin Victoriano, and entered in the latters notarial register as Doc. No. 367; Page No. 17;
Book No. V; series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T. Escao,
transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities as
reflected in the Balance Sheet of the former as of December 31, 1971.
WHEREAS, on the compromise agreement, as mentioned in the Decision made in the
Court of First Instance of Negros Oriental, 12th Judicial District Branch II, on Dec. 31,
1964 pertaining to Civil Case No. 3443 the following properties were adjudicated to Don
Julian L. Teves. We quote.
From the properties at Bais
Adjudicated to Don Julian L. Teves
....
Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all
improvements. Assessed valueP2,720.00
....

WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect
the registration of the transfer of the above corporation.
NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR
hereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel
of
land[s]with a
fair
market
value
of
EIGHTY-FOUR
THOUSAND
PESOS (P84,000.00), Philippine Currency, and which transfer,
assignment shall become absolute upon signing. (Emphasis supplied)

conveyance

and

54

The amount of P84,000.00 adverted to in the dispositive portion of the instrument

does not represent the consideration for the assignment made by Don Julian.
Rather, it is a mere statement of the fair market value ofall the nineteen (19)
properties enumerated in the instrument, of which Lot No. 63 is just one, that were
transferred by Don Julian in favor of petitioner. Consequently, the testimony of
petitioners accountant that the assignment is supported by consideration cannot
prevail over the clear provision to the contrary in the Supplemental Deed.
55

The Court of Appeals, on the other hand, apparently considered the 1948
mortgage which is annotated on the back of the TCT No. T-375 as the consideration
for the assignment. However, the said annotation shows that the mortgage was
actually executed in favor of Rehabilitation Finance Corporation, not of
petitioner. Clearly, said mortgage, executed as it was in favor of the Rehabilitation
Finance Corporation and there being no showing that petitioner itself paid off the
mortgage obligation, could not have been the consideration for the assignment to
petitioner.
56

57

58

Article 1318 of the New Civil Code enumerates the requisites of a valid contract,
namely: (1) consent of the contracting parties; (2) object certain which is the subject
matter of the contract; and (3) Cause of the obligation which is established.
Thus, Article 1352 declares that contracts without cause, or with unlawful cause
produce no effect whatsoever. Those contracts lack an essential element and they
are not only voidable but void or inexistent pursuant to Article 1409, paragraph
(2). The absence of the usual recital of consideration in a transaction which
normally should be supported by a consideration such as the assignment made by
Don Julian of all nineteen (19) lots he still had at the time, coupled with the fact
that the assignee is a corporation of which Don Julian himself was also the
59

President and Director, forecloses the application of the presumption of existence of

consideration established by law.
60

Neither could the Supplemental Deed validly operate as a donation. Article 749 of
the New Civil Code is clear on the point, thus:
Art. 749. In order that the donation of the immovable may be valid, it must be made in a
public document, specifying therein the property donated and the value of the charges
which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public
document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in
an authentic form, and this step shall be noted in both instruments.

In Sumipat, et al. v. Banga, et al., this Court declared that title to immovable
property does not pass from the donor to the donee by virtue of a deed of donation
until and unless it has been accepted in a public instrument and the donor duly
notified thereof. The acceptance may be made in the very same instrument of
donation. If the acceptance does not appear in the same document, it must be made
in another. Where the deed of donation fails to show the acceptance, or where the
formal notice of the acceptance, made in a separate instrument, is either not given
to the donor or else not noted in the deed of donation and in the separate
acceptance, the donation is null and void.
61

In the case at bar, although the Supplemental Deed appears in a public

document, the absence of acceptance by the donee in the same deed or even in a
separate document is a glaring violation of the requirement.
62

One final note. From the substantive and procedural standpoints, the cardinal
objectives to write finis to a protracted litigation and avoid multiplicity of suits are
worth pursuing at all times. Thus, this Court has ruled that appellate courts have
ample authority to rule on specific matters not assigned as errors or otherwise not
raised in an appeal, if these are indispensable or necessary to the just resolution of
the pleaded issues. Specifically, matters not assigned as errors on appeal but
consideration of which are necessary in arriving at a just decision and complete
63

64

resolution of the case, or to serve the interest of justice or to avoid dispensing

piecemeal justice.
65

In the instant case, the correct characterization of the Supplemental Deed, i.e.,
whether it is valid or void, is unmistakably determinative of the underlying
controversy. In other words, the issue of validity or nullity of the instrument which
is at the core of the controversy is interwoven with the issues adopted by the parties
and the rulings of the trial court and the appellate court. Thus, this Court is also
resolute in striking down the alleged deed in this case, especially as it appears on its
face to be a blatant nullity.
66

WHEREFORE, foregoing premises considered, the Decision dated 30 September

1999 of the Court of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T.
Agro, Inc.
SO ORDERED.
Puno (Chairman), Austria-Martinez, Callejo,
concur.

Sr.and Chico-Nazario,

JJ.,

Judgment affirmed.
Note.Although title does not vest ownership, a torrens certificate is evidence of
an indefeasible title to property in favor of the person whose name appears thereon.
(Liao vs. Court of Appeals, 323 SCRA 430 [2000])
o0o

Nos. L-46430-31. July 30, 1979.

FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA,

ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY
PROVINCE,

petitioners, vs. COURT

ALSUABUENVIAJE,

FERNANDO

OF

BUENVIAJE,

APPEALS,

FERNANDO

AMPARO
ALSUA,

represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA,

respondents.

Settlement of Estate; Estoppel; The principle of estoppel is not applicable in probate

proceedings relative to question of testamentary capacity of a person.The principle of
estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate
Estate of the Late Procopia Apostol Benedicta Obispo, et al. vs. Remedios Obispo, 50 O.G.
614, penned by Justice J.B. L, Reyes, an eminent and recognized authority on Civil Law
when he was still in the Court of Appeals, and We quote: Finally, probate proceedings
involve public interest, and the application therein of the rule of estoppel, when it will block
the ascertainment of the truth as to the circumstances surrounding the execution of
testament, would seem inimical to public policy. Over and above the interest of private
parties is that of the state to see that testamentary dispositions be carried out if, and only
if, executed conformably to law.
Same; Factual findings of probate court and the Court of Appeak that will in question
was executed according to the formalities required by law conclusive on the Supreme Court
when supported by evidence.This cited portion of the appealed decision accepts as a fact
that the findings of the lower court declaring the contested will as having been executed
with all the formal requirements of a valid will, are supported by the evidence. This finding
is conclusive upon this Tribunal and We cannot alter, review or revise the same. Hence,
there is no further need for Us to dwell on the matter as both the lower court and the
respondent appellate court have declared that these are the facts and such facts are fully
borne and supported by the records. We find no error in the conclusion arrived at that the
contested will was duly executed in accordance with law. We rule that the questioned last
will and testament of Don Jesus Alsua fully complied with the formal requirements of the
law.

Same; The holding of the Court of Appeals that a person who executes a will is
permitted to partition his properties pursuant to Art. 1056 of the Old Civil Code even before
executing his will as long as he mentions this fact in his will is erroneous.We are not in
conformity with the holding of the respondent court that the extrajudicial partition of
November 25, 1949 which under the Old Civil Code was expressly prohibited as against
public policy had been validly ratified by the holographic will of Don Jesus executed on
January 5, 1955 and his codicil of August 14, 1956. Such a holding of the appellate court
that a person who executes a will is permitted to partition his properties pursuant to the
provisions of Article 1056 of the old Civil Code even before executing his will as long as he
mentions this fact in the will, is not warranted under the ruling of Legasto vs.
Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that
the respondent court erred in denying probate to the will of Don Jesus dated November 14,
1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949
was contractually bound by the provisions thereof and hence could not revoke his
participation therein by the simple expedience of making a new will with contrary
provisions or dispositions. It is an error because the socalled extrajudicial partition of 1949
is void and inoperative as a partition; neither is it a valid or enforceable contract because it
involved future inheritance; it may only be given effect as a donation inter vivos of specific
properties to the heirs made by the parents.
Same; Donations; There could be no valid donation of the free portion of the testators
estate where the properties being donated are not specifically described.Considering that
the document, the extrajudicial partition of November 25, 1949, contained specific
designation of properties allotted to each child, We rule that there was substantial
compliance with the rules on donations inter vivos under the old Civil Code (Article 633).
On the other hand, there could have been no valid donation to the children of the other half
reserved as the free portion of Don Jesus and Doa Tinay which, as stated in the deed, was
to be divided equally among the children for the simple reason that the property or
properties were not specifically described in the public instrument, an essential
requirement under Article 633.
Same; Same; Same.This other half, therefore, remained as the disposable free
portion of the spouses which may be disposed of in such manner that either of the spouses
would like in regards to his or her share in such portion, unencumbered by the provision
enjoining the last surviving spouse to give equally to the children what belongs or would
pertain to him or her. The end result, therefore, is that Don Jesus and Doa Tinay, in the
Deed of 1949, made to their children valid donations of only one-half of their combined
properties which must be charged against their legitime and cannot anymore be revoked
unless inofficious; the other half remained entirely at the free disposal of the spouses with
regards to their respective shares.

Same; A holographic will and codicil is revocable at any time by the testator.
Respondents insist that Doe Jesus was bound by the extrajudicial partition of November 25,
1949 and had in fact conformed to said partition by making a holographic will and codicil
with exactly the same provisions as those of Doa Tinay, which respondent court sustained.
We rule, however, that Don Jesus was not forever bound thereby for his previous
holographic will and codicil as such, would remain revokable at his discretion. Art. 828 of
the new Civil Code is clear: A will may be revoked by the testator at any time before his
death. Any waiver or restriction of this right to void. There can be no restriction that may
be made on his absolute freedom to revoke his holographic will and codicil previously made.
This would still hold true even if such previous will had as in the case at bar already been
probated.
Same; The Court may entertain intrinsic validity of a will in certain cases.Though
the law and jurisprudence are clear that only questions about the extrinsic validity of the
will may be entertained by the probate court, the Court had, on more than one occasion,
passed upon the intrinsic validity of a will even before it had been authenticated.
Same; A testator may disposed of the free portion of his estate an he wishes.The
legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs
claimed or intimated otherwise. The properties that were disposed of in the contested will
belonged wholly to Don Jesus Alsuas free portion and may be disposed of by him to
whomsoever he may choose. If he now favored Francisca more, as claimed by private
respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the
motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule
in Bustamante v. Arevalo, 73 Phil. 635.
Same; Test of testamentary capacity is at the time of making the will.The test of
testamentary capacity is at the time of the making of the will. Mere weakness of mind or
partial imbecility from disease of body or from age does not render a person incapable of
making a will.
Same; Fact that testator did not cause his will to be probated during his lifetime, while
his previous holographic will and codicil were probated while he was alive does not mean
said testator lacks the requisite testamentary capacity.We agree with the petitioner that
these details which respondent court found difficult to reconcile with the ordinary course of
things and of life are mere conjectures, surmises or speculations which, however, do not
warrant or justify disallowance of the probate of the will of Don Jesus. The fact that Don
Jesus did not cause his will to be probated during his lifetime while his previous
holographic will and codicil were duly probated when he was still alive is a mere
speculation winch depends entirely on the discretion of Don Jesus as the testator. The law

does not require that a will be probated during the lifetime of the testator and for not doing
so there cannot arise any favorable or unfavorable consequence therefrom. The parties
cannot correctly guess or surmise the motives of the testator and neither can the courts.
Such surmise, speculation or conjecture is no valid and legal ground to reject allowance or
disallowance of the will. The same thing can be said as to whatever reason Don Jesus had
for selling the properties to his daughter Francisca when he had already assigned the same
properties to her in his will. While We can speculate that Don Jesus desired to have
possession of the properties transferred to Francisca after the sale instead of waiting for his
death may be a reasonable explanation or speculation for the act of the testator and yet
there is no cer-tainty that such was actually the reason. This is as good a conjecture as the
respondents may offer or as difficult to accept which respondent court believes. A conjecture
is always a conjecture; it can never be admitted as evidence.
Appeal; Factual findings of the Court of Appeals are not absolutely binding on the
Supreme Court; There are exceptions to the general rule.But what should not be ignored by
lawyers and litigants alike is the more basic principle that the findings of fact described as
final or conclusive are those borne out by the record or those which are based upon
substantial evidence. The general rule laid down by the Supreme Court does not declare the
absolute correctness of all the findings of fact made by the Court of Appeals. These are
exceptions to the general rule, where We have reviewed and revised the findings of fact of
the Court of Appeals.
Sales; The sales in question in the case at bar are valid.The claim of the private
respondents that the sales were fictitious and void for being without cause or consideration
is as weak and flimsy as the ground upon which the respondent court upheld said claim on
the basis that there was no need for funds in Don Jesus old age aside from the speculation
that there was nothing in the evidence that showed what motivated Don Jesus to change his
mind as to favor Francisca and discriminate against the other children. The two contracts of
sale executed by Don Jesus in favor of Francisca are evidence by Exhibits U and W, the
genuineness of which were not at all assailed at any time during this long drawn-out
litigation of 15 years standing. That the consideration stated in the contracts were paid is
also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the
private respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of
the consideration. And even if he now allege that in fact no transfer of money was involved,
We find his allegation belied by Exhibits X-3 and X-5, which show that the checks of
Francisca made payable to Don Jesus were in fact given to Don Jesus as he endorsed them
on the back thereof, and most specifically Exhibit A in the annulment case, which proved
that Don Jesus actually used Exhibit X-1 to complete payment on the estate and
inheritance tax on the estate of his wife to the Bureau of internal Revenue.

Same; Mere inadequacy of price does not vitiate a contract of sale.Private respondents
further insist that the sales were fraudulent because of the inadequacy of the given price.
Inadequacy of consideration does not vitiate a contract unless it is proven, which in the case
at bar was not, that there was fraud, mistake or undue influence. (Article 1355, New Civil
Code). We do not find the stipulated price as so inadequate to shock the courts conscience,
considering that the price paid was much higher than the assessed value of the subject
properties and considering that the sales were effected by a father to her daughter in which
case filial love must be taken into account.

APPEAL by certiorari from the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid Law Office for private respondents.
GUERRERO, J.:
This is an appeal by certiorari from the decision of the Court of Appeals in CAG.R. Nos. 54492-R and 54493-R which reversed the decision of the Court of First
Instance of Albay allowing the probate of the will of Don Jesus Alsua in Special
Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after
declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The
respondent court denied the probate of the will, declared null and void the two sales
subject of the complaint and ordered the defendants, petitioners herein, to pay
damages to the plaintiffs, now the private respondents, the sum of Five Thousand
Pesos (P5,000.00), to render an accounting of the properties in their possession and
to reimburse the latter the net gain in the proportion that appertains to them in the
properties from the date of the filing of the complaint up to complete restoration
plus Fifty Thousand Pesos (P50,000.00) as attorneys fees and costs.
1

The antecedent events leading to the filing of these two consolidated actions are
the following:
On November 25, 1949, Don Jesus Alsua and his wife, Doa Florentina Ralla,
both of Ligao, Albay, together with all their living children, Francisca Alsua-Betts,
Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilda Samson, and
Amparo Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de

Particion Extrajudicial (Exhibit 8), over the then present and existing properties of
the spouses Don Jesus and Doa Florentina enumerated in a prepared inventory,
Exhibit 8-A, the essential features of which are stated in private respondents Brief,
pp. 26-29. To wit:
(1)Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses,
which inventory consists of 97 pages, all of them signed by the spouses and all the
abovenamed heirs in the left margin of every page (parafo primero).
2)An acknowledgment of the spouses that all the properties described in the inventory
(Annex A) are conjugal properties with the exception of five parcels of land identified with
the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which are paraphernal
properties of the late Doa Tinay (segundo parafo).
3)An acknowledgment that during their marriage, they had nine children but five of
them died minors, unmarried (parafo tercero y cuatro).
4)An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid
possible misunderstanding among their children concerning the inheritance they are
entitled to in the event of death of one of them they have decided to effectuate an
extrajudicial partition of all the properties described in Annex A thereto under the
following terms and conditions: (Parafo quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 112 of said
inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters, with a book or
appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 12 - 20 of said
inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters, with a book or
appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 20 - 33 of said
inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters, with a book or
appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 33 - 47 of said

inventory or, 47 parcels of land with a total land area of 5,630,715 sq. meters, with a book or
appraised value of P58,830.00.
(a)Each and every one of the heirs named above acknowledge and admit that the totality
of the properties allotted and adjudicated to the heirs as described in the preceding
paragraph, constitute onehalf of the properties described in Annex A, including any
amount of cash deposited.
(b)That all the heirs acknowledge and admit that all the properties assigned to them as
their hereditary portion represent one-half not only of the conjugal properties but includes
the paraphernal propertieswaiving now and forever any complaint or claim they have or
they may have concerning the amount, value, extension and location of the properties that
are allotted to each and everyone. They also waive any claim they have or they may have
over the remaining portion of the properties, which spouses reserved for themselves.
(c)That in case of death of one of the spouses, each and everyone of the heirs
acknowledge that the properties which are left in the possession of the surviving spouse,
including any amount in cash, are even less than the one-half that should correspond in
absolute ownership as his legitimate participation in the conjugal properties. In
consequence they waive any claim that they have or may have over said portion of said
properties or any amount in cash during the lifetime of the surviving spouse, including any
right or claim they have or they may have over the paraphernal properties of Doa Tinay in
the event the surviving spouse is Don Jesus.
(d)The spouses on their part in case of death of any one of them, the surviving spouse
waives any claim he or she may have over the properties assigned or adjudicated to the
heirs under and by virtue of this deed. The properties which were reserved for them (the
spouses) should be considered as his or her legitimate participation in the conjugal
properties and the fair compensation of his or her usufruct on the properties that the
surviving spouse reserved for himself or herself which shall be distributed in equal shares
among the heirs upon his or her death unless said properties of some of them have been
disposed of during the lifetime of the surviving spouse.
(e)Any heir who may dare question the validity and legitimacy of the provision contained
herein shall be under obligation to pay to the other heirs, in the concept of damages and
prejudice, the sum of P5,000.00 plus attorneys fees.
(f)The provisions of this deed shall bind, the successors of the herein heirs.
(g)In the event of death of one of the spouses, the properties assigned or adjudicated to
each and everyone of the heirs shall be considered as his share or participation in the estate

or as his inheritance left by the deceased and each heir shall become the absolute owner of
the properties adjudicated to him under this deed.

On January 5, 1965, Don Jesus and Doa Florentina, also known as Doa Tinay
separately executed their respective holographic wills (Exhs. 6-B and 7-B), the
provisions of which were in conformity and in implementation of the extrajudicial
partition of November 25, 1949. Their holographic wills similarly provided for the
institution of the other to his or her share in the conjugal properties, the other half
of the conjugal assets having been partitioned to constitute their legitime among
their four living children in the Extrajudicial Partition of 1949. The wills also
declared that in the event of future acquisitions of other properties by either of
them, one-half thereof would belong to the other spouse, and the other half shall be
divided equally among the four children. The holographic will of Doa Tinay written
in Spanish reads, as translated:
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua,
resident of and with postal address in the Municipality of Ligao, Province of Albay,
Philippines, being in the full possession of my mental and physical faculties freely and
spontaneously execute this my last will and testament in my handwriting and signed by me
and expressed in the Spanish language which I speak, write and understand, this 5th day of
January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and
provide:
First: That in or about the year 1906 I was married to my husband Don Jesus Alsua
and begot nine (9) children with him, four (4) of whom are still living and they are Francisca
Alsua, Pablo Alsua, Fer-nando Alsua and Amparo Alsua. The other five (b) died during their
minority, single and without children.
Second: That after my marriage to my husband Don Jesus Alsua and during our
conjugal union, and as a result of our efforts and industry, we were able to acquire conjugal
properties consisting of abaca (abales) and cacao lands and urban lands registered in the
office of the Registry of Property of the Province of Albay and in the City of Manila.
Third: That I institute as my heirs with right to inherit the following: my spouse Don
Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to my
children Francisca Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua,
married to Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal

parts. It is to be understood, however, that the other half that corresponds as legitime to my
above named children have already been given to them, pursuant to a document dated
November 25, 1949 and ratified on the same day, month and year before Notary Public
Segundo G. Flores (Reg. No. 525; Pag, 15; Lib. II; Series of 1,949) enjoining each and
everyone of them to respect and faithfully comply with each and every clause contained in
the said document.
Fourth: That should I acquire new properties after the execution of this testament, the
same shall he partitioned among my spouse and above named children or the children
mentioned in above par. 3 in the same proportion, that is, one-half (1 1/2) to my spouse; and
the other half to my children in equal parts.
Fifth: That I name as my executor my husband Don Jesus Alsua without having to post
any bond.
IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th
day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines.
(SGD.) FLORENTINA R. DE ALSUA
(Joint Record on Appeal, pp. 420-423, CA-G.R. No. 54492-R)

As previously stated, Don Jesus Alsua executed a separate but similar

holographic will on the same day, Jan. 5, 1955 in exactly the same terms and
conditions as the above will of his wife.
On May 21, 1956, the spouses Don Jesus and Doa Tinay filed before the Court of
First Instance of Albay their respective petitions for the probate of their respective
holographic wills which were docketed as Special Proceedings No. 484 (Jesus Alsua,
Petitioner) and Special Proceedings No. 485 (Doa Florentine Ralla de Alsua,
Petitioner).
On August 14, 1956, the spouses Don Jesus and Doa Tinay executed their
mutual and reciprocal codicils amending and supplementing their respective
holographic wills. Again, the codicils similarly acknowledged and provided that onehalf of all the properties of the spouses, conjugal and paraphernal, had been
disposed of, conveyed to and partitioned among their legitimate heirs in the
Escritura de Particion of November 25, 1949, but that they reserved for
themselves (the spouses Don Jesus and Doa Tinay) the other half or those not

disposed of to the said legitimate heirs under the above agreement of partition, and
that they mutually and reciprocally bequeathed unto each other their participation
therein as well as in all properties which might be acquired subsequently. Each
spouse also declared that should she or he be the surviving spouse, whatever
belongs to him or her or would pertain to him or her, would be divided equally
among the four children. It was also declared in both codicils that upon the death of
either of the spouses, the surviving spouse was designated mutually and
reciprocally as the executor or administrator of all the properties reserved for
themselves.
The codicil executed by Doa Tinay written in Spanish reads, as translated:
CODICIL
This codicil supplements and amends the preceding testament. That my spouse and I
have agreed to divide the properties which we have acquired into 2 parts. The 1/2 that
would correspond to me covers all the properties that I have partitioned among my children
in the Document of Partition dated November 25, 1949 before Notary Public Segundo G.
Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. II; Series of 1949) (and) even as the
properties which by reason of this testament I leave to my husband as his share and the
other half that corresponds to my husband constitutes all the properties that up to now
have not been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of
the Province of Albay and in the City of Manila, with the exception of that portion that I
bequeath to my husband as his inheritance ans his legitimate.
That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and
my children Francisca Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I leave to my
aforecited children all the properties described in the above mentioned Document of
Partition dated November 25, 1949 which correspond to each one of them and in the profits
(fruits) expressed in the same, and in the event that the properties granted to one or any of
my children should exceed in quantity or value those corresponding to another or others, I
hereby declare that it is my will that the same be divided among my children as their
inheritance from the free portion of my property.
I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of
the free portion of my property which have not been allocated in favor of my children in the
Document of Partition aforecited and that which should exceed 1/2 of the conjugal property
of gains that pertains to him as above stated, including all those properties which we shall
acquire after the execution of this document.

In case it should be Gods will that I survive my spouse, I hereby declare that it is my
will that any and all kinds of property that pertain to me or would pertain to me, which
have not been disposed of pursuant to the partition, should be divided equally among my
above-mentioned heirs after my death.
Ligao, Albay, Philippines, August 14, 1956.
(SGD.) FLORENTINA RALLA DE ALSUA
(Joint Record on Appeal, pp. 423-425, CA-G.R. No. 54492-R)

And as stated previously, on the same day, August 14, 1956, Don Jesus executed
also a separate but similar codicil in exactly the same terms and conditions as the
above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don
Jesus and Doa Tinay both filed their respective supplemental petitions for the
probate of their respective codicils in the probate proceedings earlier filed. On
February 19, 1957, their respective holographic wills and the codicils thereto were
duly admitted to probate.
Upon the death of Doa Tinay on October 2, 1959, Don Jesus was named
executor to serve without bond in an order issued by the probate court on October
13, 1959. Letters testamentary having been issued in favor of Don Jesus, he took his
oath of office and performed his duties as such until July 1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled his
holographic will in the presence of his bookkeeper and secretary, Esteban P.
Ramirez, whom he instructed to make a list of all his remaining properties with
their corresponding descriptions. His lawyer, Atty. Gregorio Imperial, Sr. was then
instructed to draft a new will which was duly signed by Don Jesus and his attesting
witnesses on November 14, 1959 at his home in Ligao, Albay, This notarial will and
testament (Exh. A) of Don Jesus executed, on November 14, 1959 had three
essential features: (a) it expressly cancelled, revoked and annulled all the provisions
of Don Jesus holographic will of January 5, 1955 and his codicil of August 14, 1956;
(b) it provided for the collation of all his properties donated to his four living
children by virtue of the Escritura de Particion Extra-judicial of 1949, and that
such properties be taken into account in the partition of his estate among the
children; and (c) it instituted his children as legatees/devisees of certain specific
properties, and as to the rest of the properties and whatever may be subsequently

acquired in the future, before his death, were to be given to Francisca and Pablo,
naming Francisca as executrix to serve without a bond.
After all debts, funeral charges and other expenses of the estate of Doa Tinay
had been paid, all her heirs including Don Jesus, submitted to the probate court for
approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which
essentially confirmed the provisions of the partition of 1949, the holographic will
and codicil of Doa Tinay. On July 6, 1960, the court approved the partition of 1959
and on January 6, 1961 declared the termination of the proceedings on the estate of
Doa Tinay.
On May 6, 1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix
named in the will of November 14, 1959, filed a petition for the probate of said new
will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed
as Special Proceedings No. 699, Oppositions thereto were filed by Pablo, Amparo
and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds:
(a) that Don Jesus was not of sound and disposing mind at the time of the execution
of the alleged will; (b) that the will was executed under duress or influence of fear or
threats; or it was procured by undue and improper pressure and influence on the
part of the main beneficiaries and of person or persons in collusion with them, or
the signature of the testator was secured by or thru fraud; (c) that the will was not
executed according to the formal requirements of the law; and (d) that the alleged
will subject; of probate contravened the Extrajudicial Partition of 1949 agreed upon
by him, his deceased spouse, Doa Tinay, and all his children, Francisca, Pablo,
Amparo and Fernando thru his judicial guardian Clotilda Samson, and also
contravened Don Jesus own probated holographic will and codicil of 1955 and 1958,
respectively, essentially confirming and implementing the said partition of 1949
which had already been partially executed by all the signatories thereto in the
partition of the estate of Doa Tinay in December, 1959.
On the basis of Franciscas designation as executrix in the new will dated
November 14, 1959, the Probate Court appointed her Administratrix of the estate of
her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory
of the properties of the estate which, according to the oppositors therein (the private
respondents now) did not include some properties appearing in the agreement of

November 25, 1949 or in the inventory attached thereto as Annex A and in the
Escritura de Particion of December 19, 1959 as belonging to or should pertain to
Don Jesus. According to the oppositors, these properties consist of thirty-three (33)
premium agricultural lots with a total land area of 1,187,970 square meters, or
approximately 119 hectares and with a total assessed value of P48,410.00 or a
probable total market value of P238,000.00 at only P2,000.00 per hectare, and four
(4) commercial urban lots ideally located in the business section of Legaspi City
including the lot and the building presently occupied by the well-known Mayon
Hotel with an assessed value of approximately P117,260.00 or a probable market
value at the time of P469,040.00. It appearing from the new will that these
properties were bequeathed to Pablo Alsua and Francisca Alsua-Betts, specifically, 3
parcels of the 33 agricultural lands to Pablo and the rest to Francisca, the
oppositors also raised in issue the non-inclusion of said properties in the inventory
of the estate of their late father, In answer, Francisca claimed ownership over the
same, alleging that she bought the properties from their father and presenting the
two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show
the sale of the 33 parcels of agricultural land to Francisca by their father for the
price of P70,000.00 and the other dated November 26, 1962 evidencing the sale of
the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the
oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid two
deeds of sale, with damages, which upon agreement of the parties was then jointly
heard and tried with Special Proceedings No. 699 for probate of the Last Will and
Testament of Don Jesus executed on November 14, 1959.
After a joint hearing of the merits of these two eases, the Court of First Instance
of Albay promulgated a decision on January 15, 1973, the dispositive portion of
which states:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:
1.In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will
executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had been
marked as Exhibit A, consisting of nine (9) pages, and orders that the same be made the
basis for division and distribution of the estate of said testator;
2.In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale
on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are lawful and
valid sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil

Case 3068, are ordered jointly and severally to pay to the defendant, Francisca Alsua Betts
Fifty Thousand Pesos (P50,000.00) as damages and Fifty Thousand (P50,000.00) Pesos for
attorneys fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the
costs.

On appeal by herein respondents to the Court of Appeals, the court reversed the
appealed decision in a judgment rendered on April 4, 1977, the dispositive portion of
which states, as translated, thus
IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it
hereby sets aside the decision appealed from in the following manner: (1) in Special
Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case No.
3068, Exhs. U and W and the titles issued on the basis thereof are hereby declared null and
void, ordering the appellees Francisca Alsua and Joseph Betts to pay to the plaintiffs in the
concept of fixed damages, the sum of P5,000.00 and to render an accounting of properties in
their possession and to reimburse the plaintiffs the net gain, in the proportion that
appertains to them in the properties subject of litigation in Civil Case No. 3068 from the
date of the filing of this complaint, up to the complete restoration of the properties
pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11,
ordering them in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as
attorneys fees, and the costs.

Hence, the petition at bar assailing the respondent courts decision on four assigned
errors, to wit:
I.The respondent Court of Appeals erred in not affirming the findings of the
probate court (Special Proceedings No. 699) that private respondents, oppositors to
the probate of the will, are in estoppel to question the competence of testator Don
Jesus Alsua.
II.The respondent Court of Appeals grossly erred in holding that testator Don
Jesus Alsua cannot revoke his previous will.
III.The respondent courts finding is grounded entirely on speculation, surmises
or conjectures resulting in a gross misapprehension of facts.
IV.The respondent court grossly erred in annulling the sales of August 26, 1961
(Exh. U), and of November 26, 1962 (Exh. W).

On the first issue of estoppel raised in the assignment of errors, We hold that the
same is of no moment. The controversy as to the competency or incompetency of Don
Jesus Alsua to execute his will cannot be determined by acts of the herein private
respondents as oppositors to the will in formally agreeing in writing jointly with the
petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed
by the court executor of the will of their mother in Special Proceedings No. 485,
Testate Estate of Doa Florentina Ralla de Alsua and in subsequently petitioning
the court not to require Don Jesus Alsua to file any accounting as executor in the
proceedings, which petitioners claim and was upheld by the trial court as
constituting estoppel on the part of the private respondents from questioning the
competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a ruling laid
down in the case of Testate Estate of the Late Procopia Apostol. Benedicta Obispo, et
al. vs. Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L, Reyes, an eminent
and recognized authority on Civil Law when he was still in the Court of Appeals,
and We quote:
Finally, probate proceedings involve public interest, and the application therein of the
rule of estoppel, when it will block the ascertainment of the truth as to the circumstances
surrounding the execution of a testament, would seem inimical to public policy. Over and
above the interest of private parties is that of the state to see that testamentary
dispositions be carried out if, and only if, executed conformably to law.
The Supreme Court of New York aptly said in Re Canfields Will, 300 N.Y.S., 502:
The primary purpose of the proceeding is not to establish the existence of the right of any living
person, but to determine whether or not the decedent has performed the acts specified by the
pertinent statutes, which are the essential prerequisites to personal direction of the mode of
devolution of his property on death. There is no legal but merely a moral duty resting upon a
proponent to attempt to validate the wishes of the departed, and he may and frequently does receive
no personal benefit from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is the duty of the court to
effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a
deceased person (Matter of Watsons Will, 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marrimans
Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126,
Henderson, S., Matter of Draskes Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end, the
court is, in effect, an additional party to every litigation affecting the disposal of the assets of the
deceased. Matter of Van Valkenburghs Estate, 164 Misc. 295, 298, N.Y.S., 219.

The next issue that commands Our attention is whether the respondent court erred in
not allowing the probate of the last will and testament of Don Jesus Alsua. Petitioners
claim that the disallowance was based on speculations, surmises or conjectures,
disregarding the facts as found by the trial court. The Civil Court is very clear and explicit
in providing the cases where a will may be disallowed under Article 839 which provides as f
allows:
Art. 839. The will shall be disallowed in any of the following cases:
(1)If the formalities required by law have not been complied with;
(2)If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;
(3)If it was executed through force or under duress, or the influence of fear, or threats;
(4)If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
(5)If the signature of the testator was procured by fraud;
(6)If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

The issue under consideration appears to Us to have been answered by the

respondent court itself when it accepted the findings of the trial court on the due
execution of the questioned will and testament of Don Jesus, declaring:
x x x and going back to the previous question, whether the questioned will and
testament of November 14, 1959, Exh. A, was executed in accordance with Arts. 805-809 of
the New Civil Code,this Tribunal from the very beginning accepts the findings of the
inferior court concerning the question,
On October 2, 1959, Doa Florentine died at Ligao, Albay. About 2 weeks after said death of his
wife, Don Jesus Alsua decided to make a new will, thereby revoking and cancelling his previous
holographic will which he made on January 5, 1955 and also its codicil dated August 14, 1956. In the
presence of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink each and every
page of said page he wrote on each page the word cancelado, and affixed his signature thereon
(Exh. V-5, V-6, consecutively up to and including Exh. V-14). He then instructed Ramirez to make a
list of all his properties with their corresponding descriptions.

Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came
accompanied by his son, Atty. Jorge S. Imperial, who, incidentally, is now a judge of the Court of
First Instance of Naga City, Camarines Sur. Don Jesus informed his lawyers that he wanted to make
a new will, and accordingly gave more detailed instructions as to how he wanted to divide his
properties among his four children. He handed to them a list and on the left he indicated the name of
the child to whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the
instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in fact his
conversations with Don Gregorio are always in Spanish. A few days before November 14, 1959, Atty.
Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus
said that it was as directed by him, and after making a few minor corrections, he instructed Atty.
Jorge S. Imperial to put the will in final form. He further told Atty. Jorge Imperial that the signing of
the will should be at his home in Ligao, in the morning of November 14, 1959, and that the witnesses
should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a
friend of the family; and Mr. Jose Gaya who is a sort of employee of Don Jesus.
Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a
sedan, stopped at the Legaspi residence of Mr. Ramon Balana, and informed the latter that Don
Jesus was requesting him to be one of the attesting witnesses to his will. Mr. Balana, having a very
high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the Imperials.
They arrived at the residence of Don Jesus at Ligao; Albay, almost ten oclock of that morning, and
they were ushered in by Mr. Jose Gaya, and the latter requested them to be seated at the usual
receiving room on the ground floor while he announced their arrival to Don Jesus who was on the
second floor. Soon Don Jesus came down, carrying with him the will to be signed placed inside a
cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined
them in conversation, Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road
from the house of Don Jesus. Mr. Madarieta was already informed by Don Jesus himself about the
fact of signing the will that morning, and so, on being advised by Mr. Gaya that the Imperials had
already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With the
coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living
room, namely: Don Jesus Alsua, Don Gregorio Imperial, Atty. Jorge S. Imperial, Mr. Ramon Balana,
Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared
that Don Jesus was in bright and lively conversation which ran from problems of farming and the
merits of French-made wines. At 11:00 oclock, Don Gregorio made a remark that it is about time to
do what they were there for, and this was followed by a more or less statement from Jesus, who said:
Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi ultimo
voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis
instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta
satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.
(pp. 43-44, t.s.n., hearing of December 7, 1967, Sarte.

On request of Don Jesus, all of them moved to the big round table on another part of the same
sala for convenience in signing because there were chairs all around this table. The will which

consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing
began, with Atty. Jorge S. Imperial assisting each person signing by indicating the proper place
where the signature shall be written. Don Jesus, as testator, signed first. After signing the original
and the two other sets, the three sets were then passed to Mr. Ramon Balana who signed as attesting
witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when
Mr. Madarieta finished signing all the three sets, the same were passed to Mr. Jose Gaya who also
signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times,one on
the margin of each of the nine pages, and at the end of the instrument proper. Each of the three
attesting witnesses (Balana, Madarieta and Gaya) signed eleven times on each set,one on the
margin of each of the nine pages, one at the end of the instrument proper and one below the
attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh. K (or set
K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were identified by Mr.
Balana, Mr. Madarieta and Atty. (now Judge) Imperial. It was also clearly established that when Don
Jesus signed the will, Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said
signing, and that when each of these three witnesses was signing, Don Jesus and the two other
attesting witnesses were present and witnessing said signing. The signing by the testator and the
attesting witnesses having been completed, Atty. Jorge S. Imperial, as Notary Public with
commission for the entire province of Albay, notarized the will, and sealed it with his notarial seal,
which seal he brought along that morning. After all the three sets were notarized, they were all given
back to Don Jesus who placed them inside the same folder. At that moment, it was already about
12:30 P.M. and Don Jesus invited all of them to lunch, which invitation was gladly accepted by all of
them. (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R)

which findings are supported by the evidence,it is quite difficult to conclude that the
same had not complied with the requirements of Arts. 804-806 of the New Civil Code. x x x
(CA Decision, pp. 13-16, as translated).

This cited portion of the appealed decision accepts as a fact that the findings of
the lower court declaring the contested will as having been executed with all the
formal requirements of a valid will, are supported by the evidence. This finding is
conclusive upon this Tribunal and We cannot alter, review or revise the same.
Hence, there is no further need for Us to dwell on the matter as both the lower court
and the respondent appellate court have declared that these are the facts and such
facts are fully borne and supported by the records. We find no error in the
conclusion arrived, at that the contested will was duly executed in accordance with
law. We rule that the questioned last will and testament of Don Jesus Alsua fully
cornplied with the formal requirements of the law.
Respondent court, however, denied probate of the will after noting certain
details which were a little bit difficult to reconcile with the ordinary course of things

and of life. First was the fact that the spouses Don Jesus and Doa Tinay together
with their four children Francisca, Pablo, Amparo and Fernando had executed the
Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal
properties of the spouses between the spouses themselves and the children under
the terms and conditions and dispositions hereinbefore stated and to implement its
provisions, Don Jesus and Doa Tinay subsequently executed separately their
respective holographic wills both dated January 5, 1955 and codicils dated August
14, 1956 with the same terms and conditions as reproduced herein earlier. Both
holographic wills and codicils having been probated thereafter and upon the death
of Doa Tinay, Don Jesus was appointed executor of the will and in due time the
partition of the properties or estate of Doa Tinay was approved by the probate
court on July 6, 1960. The respondent court ruled that the Extrajudicial Partition of
November 25, 1949 was an enforceable contract which was binding on Don Jesus
Alsua as the surviving spouse, barring him from violating said partition agreement,
barring him from revoking his holographic will of January 5, 1955 and his codicil of
August 14, 1956, and further barring him from executing his new will and
testament of November 14, 1959, now the subject of the probate proceedings
elevated to this Court. We do not agree with this ruling of the Court of Appeals. We
hold that the Extrajudicial Partition of November 25, 1949 is null and void under
Article 1056 in relation to Article 1271 of the old Civil Code which are applicable
hereto. These Articles provide as follows:
Art. 1056. If the testator should make a partition of his property by an act inter vivos,
or by will, such partition shall stand in so far as it does not prejudice the legitime of the
forced heirs. x x x
Art. 1271. All things, even future ones, which are not excluded from the commerce of
man, may be the subject-matter of contracts.
Nevertheless, no contract may he entered into with respect to future inheritances, except
those the object of which is to make a division inter vivos of an estate, in accordance with
Article 1056.
All services not contrary to law or to good morals may also be the subject-matter of
contract.

Article 1058 specifically uses the word testator from which the clear intent of
the law may be deduced that the privilege of partitioning ones estate by acts inter

vivos is restricted only to one who has made a prior will or testament. In other
words, Article 1056 being an exception cannot be given a wider scope as to include
in the exception any person whether he has made a will or not.
Respondent court citing the same Article concluded that under both the old and
new Civil Code, a person who executes a will is permitted at the same time or a
little thereafter or even before as long as he mentions this fact in the will, to
partition his properties pursuant to the provisions of Article 1056 of the old Civil
Code. The court further added that jurisprudence is to the effect that the partition
presupposes the execution of the will that it ratifies or effectuates, citing the case
of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that
the extrajudicial partition of November 14, 1949 was ratified in the holographic will
executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent court. In Legasto vs.
Verzosa, supra, the Supreme Court categorically declared the necessity of a prior
will before the testator can partition his properties among his heirs, and We quote
the pertinent portions of the decision:
The first question to decide in the instant appeal is whether the partition made by
Sabina Almadin of her property among her nieces, the defendants and appellants herein,
was valid and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition of his property by an act inter vivos, or
by will, such partition shall stand in so far as it does not prejudice the legitime of the forced
heirs.
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the
following doctrine:
Considering that the language of article 1056 cannot be interpreted to mean that a
person may, by acts inter vivos, partition his property referred to in the section wherein
said article is found, without the authority of a testament containing an expression of his
last will, or the authority of law, for, otherwise, a partition thus made would be tantamount
to making a will in a manner not provided for, authorized, nor included in the chapter
referring to testaments, and especially, to the forms thereof, which is entirely different from

the legal consequences of a free disposition made by parents during their lifetime, whereby
they give to their children the whole or a part of their property;
Considering that, inasmuch as the second paragraph of article 1271 makes reference to
the aforesaid article, in providing that no contracts may be entered into with respect to
future inheritances except those the object of which is to make a division inter vivos of the
estate in accordance with article 1056, it is evident that said difference likewise leads to the
conclusion that a partition thus made should be on the basis of a testamentary or legal
succession and should be made in conformity with the fundamental rules thereof and the
order of the heirs entitled to the estate, because neither of the two provisions could be given
a wider meaning or scope than that they simply provide for the division of the estate during
the lifetime of the owner, which, otherwise, would have to be done upon the death of the
testator in order to carry into effect the partition of the estate among the persons
interested.
Manresa comments on the same article as follows;
A distinction must be made between the disposition of property and its division; and the
provision of article 1056 authorizing the testator to dispose of his property by acts inter
vivos or by last will, must be understood in accordance with this distinction. The idea is to
divide the estate among the heirs designated by the testator. This designation constitutes
the disposition of the properties to take effect after his death, and said act must necessarily
appear in the testament because it is the expression of the testators last will and must be
surrounded by appropriate formalities. Then comes the second part, to wit, the division in
conformity with that disposition, and the testator may make this division in the same will
or in another will, or by an act inter vivos. With these words, the law, in article 1056 as well
as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner
of making the partition and not to the effects thereof, which means that, for purposes of
partition the formal solemnities which must accompany every testament or last will are not
necessary. Neither is it necessary to observe the special formalities required in case of
donations, because it is not a matter of disposing gratuitously of properties, but of dividing
those which already have been legally disposed of.
It is thus seen that both the Spanish Supreme Court and the learned and authoritative
commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition
his property, but he must first make a will with all the formalities provided for by law. And
it could not be otherwise, for without a will there can be no testator; when the law,
therefore, speaks of the partition inter vivos made by a testator of his property, it
necessarily refers to that property which he has devised to his heirs. A person who disposes
of his property gratis inter vivos is not called a testator, but a donor, In employing the word

testator, the law evidently desired to distinguish between one who freely donates his
property in life and one who disposes of it by will to take effect after his death.

We are not in conformity with the holding of the respondent court that the
extrajudicial partition of November 25, 1949 which under the old Civil Code was
expressly prohibited as against public policy had been validly ratified by the
holographic will of Don Jesus executed on January 5, 1955 and his codicil of August
14, 1956. Such a holding of the appellate court that a person who executes a will is
permitted to partition his properties pursuant to the provisions of Article 1056 of
the old Civil Code even before executing his will as long as he mentions this fact in
the will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the
commentary of Manresa as quoted above. We rule, therefore, that the respondent
court erred in denying probate to the will of Don Jesus dated November 14, 1959; it
erred in holding that Don Jesus being a party to the extrajudicial partition of 1949
was contractually bound by the provisions thereof and hence could not revoke his
participation therein by the simple expedience of making a new will with contrary
provisions or dispositions. It is an error because the so-called extrajudicial partition
of 1949 is void and inoperative as a partition; neither is it a valid or enforceable
contract because it involved future inheritance; it may only be given effect as a
donation inter vivos of specific properties to the heirs made by the parents.
Considering that the document, the extrajudicial partition of November 25, 1949,
contained specific designation of properties allotted to each child, We rule that there
was substantial compliance with the rules on donations inter vivos under the old
Civil Code (Article 633). On the other hand, there could have been no valid donation
to the children of the other half reserved as the free portion of Don Jesus and Doa
Tinay which, as stated in the deed, was to be divided equally among the children for
the simple reason that the property or properties were not specifically described in
the public instrument, an essential requirement under Article 633 which provides
as follows:
Art. 633. In order that a donation or real property be valid it must be made by public
instrument in which the property donated must be specifically described and in the amount
of the encumbrances to be assumed by the donee expressed.
The acceptance must be made in the deed of gift or in a separate public writing; but it
shall produce no effect if not made during the lifetime of the donor.

If the acceptance is made by separate public instrument, authentic notice thereof shall
be given the donor, and this proceeding shall be noted in both instruments.

This other half, therefore, remained as the disposable free portion of the spouses
which may be disposed of in such manner that either of the spouses would like in
regards to his or her share in such portion, unencumbered by the provision
enjoining the last surviving spouse to give equally to the children what belongs or
would pertain to him or her. The end result, therefore, is that Don Jesus and Doa
Tinay, in the Deed of 1949, made to their children valid donations of only one-half of
their combined properties which must be charged against their legitime and cannot
anymore be revoked unless inofficious; the other half remained entirely at the free
disposal of the spouses with regards to their respective shares.
Upon the death of Doa Tinay on October 2, 19593587, her share in the free
portion was distributed in accordance with her holographic will dated January 25,
1955 and her codicil dated August 14, 1956. It must be stressed here that the
distribution of her properties was subject to her holographic will and codicil,
independently of the holographic will and codicil of Don Jesus executed by him on
the same date. This is fundamental because otherwise, to consider both wills and
codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills
(Art. 818) and secondly because upon the death of Doa Tinay, only her estate was
being settled, and not that of Don Jesus.
We have carefully examined the provisions of the holographic will and codicil of
Doa Tinay and We find no indication whatsoever that Doa Tinay expressly or
impliedly instituted both the husband and her children as heirs to her free portion
of her share in the conjugal assets. In her holographic will, mention of her children
as heirs was made in the fourth clause but it only provided that, to wit:
Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi
testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada en el
parrafo tercero su la misma proporcion o sea: la mitad (1/2) para mis osposa; y la otra mitad
(1/2) para mis hijos en partes iguales.

For purposes of clarity and convenience, this fourth clause provided that Should
I acquire new properties after the execution of this testament, the same shall be
partitioned among my spouse and above named children or the children mentioned
in above par. 3 in the same proportion, that is one-half (1/2) to my spouse; and the

other half to my children in equal parts. From the above-quoted provision, the
children would only inherit together with Don Jesus whatever new properties Doa
Tinay would acquire after the execution of her will.
Likewise, the codicil of Doa Tinay instituted her husband as sole heir to her
share in the free portion of the conjugal assets, and We quote that part of the codicil:
Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de mi
cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en favor de
mis hijos en la escritura de reparticion precitada y que excedieran de la mitad de
gananciales que le corresponde tal como arriba declaro, incluyendo todos aquellos bienes
que se adquiriesen por nosotros despues de otorgado por mi este testamento.
Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi
voluntad que todas las propiedades de todo genero que me pertenecen y me pudieran
pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis herederos
mencionados despues de mi muerte.

Again for purposes of clarity and convenience, the above portion states:
I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of
the free portion of my property which have not been allocated in favor of my children in the
Document of Partition aforecited and that which should exceed 1/2 of the conjugal property
of gains that pertains to him as above stated, including all those properties which we shall
acquire after the execution of this document.
In case it should be Gods will that I survive my spouse, I hereby declare that it is my
will that any and all kinds of property that pertains to me or would pertain to me, which
have not been disposed of pursuant to the partition, should be divided equally among my
above-mentioned heirs after my death.

The children, therefore, would only receive equal shares in the remaining estate
of Doa Tinay in the event that she should be the surviving spouse. To stress the
point, Doa Tinay did not oblige her husband to give equally to the children, upon
his death, all such properties she was bequeathing him.
Considering now the efficacy of Don Jesus last will and testament executed on
November 14, 1959 in view of Our holding that Doa Tinays will and codicil did not
stipulate that Don Jesus will bestow the properties equally to the children, it follows

that all the properties of Doa Tinay bequeathed to Don Jesus under her
holographic will and codicil became part of Don Jesus estate unburdened by any
condition, obligation or proviso.
Respondents insist that Don Jesus was bound by the extra-judicial partition of
November 25, 1949 and had in fact conformed to said partition by making a
holographic will and codicil with exactly the same provisions as those of Doa Tinay,
which respondent court sustained. We rule, however, that Don Jesus was not forever
bound thereby for his previous holographic will and codicil as such, would, remain
revokable at his discretion. Art. 828 of the new Civil Code is clear: A will may be
revoked by the testator at any time before his death. Any waiver or restriction of
this right is void. There can be no restriction that may be made on his absolute
freedom to revoke his holographic will and codicil previously made. This would still
hold trueeven if such previous will had as in the case at bar already been
probated. (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only
authenticates the will and does not pass upon the efficacy of the dispositions
therein. And secondly, the rights to the succession are transmitted only from the
moment of the death of the decedent (Article 777, New Civil Coda). In fine, Don
Jesus retained the liberty of disposing of his property before his death to
whomsoever he chose, provided the legitime of the forced heirs are not prejudiced,
which is not herein claimed for it is undisputed that only the free portion of the
whole Alsua estate is being contested.
After clearly establishing that only Don Jesus was named as sole heir instituted
to the remaining estate of Doa Tinay in her holographic will and codicil resulting
in all such properties becoming the properties of Don Jesus alone, and after clearly
pointing out that Don Jesus can, in law, revoke his previous holographic will and
codicil, by making another will expressly cancelling and revoking the former, the
next issue for the Courts resolution is the validity of the provisions of the contested
will. Though the law and jurisprudence are clear that only questions about the
extrinsic validity of the will may be entertained by the probate court, the Court had,
on more than one occasion, passed upon the intrinsic validity of a will even before it
had been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499:
The parties shunted aside the question of whether or not the will should be allowed to
probate. For them, the meat of the case is the intrinsic validity of the will. Normally this
comes only after the court has declared that the will has been duly authenticated. x x x

x x x If the case were to be remanded for probate of the will, nothing will be gained. On
the contrary, this litigation will be protracted and for ought that appears in the record, in
the event of probate or if the court rejects the will, probability exists that the case will come
up once again before us on the same issue of the intrinsic validity or nullity of the will
Result: waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question. x x x

The last Will and Testament of Don Jesus executed on November 14, 1959
contained an express revocation of his holographic will of January 5, 1955 and the
codicil of August 14, 1956; a statement requiring that all of his properties donated
to his children in the Deed of 1949 be collated and taken into account in the
partition of his estate; the institution of all his children as devisees and legatees to
certain specific properties; a statement bequeathing the rest of his properties and
all that may be acquired in the future, before his death, to Pablo and Francisca; and
a statement naming Francisca as executrix without bond.
Considering these testamentary provisions, a close scrutiny of the properties
distributed to the children under the Deed of 1949 and those distributed under the
contested will of Don Jesus does not show that the former had in fact been included
in the latter. This being so, it must be presumed that the intention of Don Jesus in
his last will was not to revoke the donations already made in the Deed of 1949 but
only to redistribute his remaining estate, or that portion of the conjugal assets
totally left to his free disposal and that which he received as his inheritance from
Doa Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not
one of said forced heirs claimed or intimated otherwise. The properties that were
disposed of in the contested will belonged wholly to Don Jesus Alsuas free portion
and may be disposed of by him to whom-soever he may choose.
If he now favored Francisca more, as claimed by private respondents, or Pablo as
in fact he was, We cannot and may not sit in judgment upon the motives and
sentiments of Don Jesus in doing so. We have clearly laid down this rule
in Bustamanie v. Arevalo, 73 Phil. 635, to wit:
x x x nevertheless it would be venturesome for the court to advance its own idea of a
just distribution of the property in the face of a different mode of disposition so clearly
expressed
by
the
testatrix
in
the
latter
will
x
x
x
It would be a dangerous precedent to strain the interpretation of a will in order to effect

what the court believes to be an equitable division of the estate of a deceased person. The
only functions of the courts in these cases is to carry out the intention of the deceased as
manifested in the will. Once that intention has been determined through a careful reading
of the will or wills, and provided the law on legitimes has not been violated, it is beyond the
place of judicial cognizance to inquire into the fairness or unfairness of any devise or
bequeast. The court should not sit in judgment upon the motives and sentiments of the
testatrix, first, because as already stated, nothing in the law restrained her from disposing
of her property in any manner she desired, and secondly, because there are no adequate
means of ascertaining the inward process of her conscience. She was the sole judge of her
own attitude toward those who expected her bounty. x x x

Respondent court, in trying to rationalize the will of Don Jesus which allegedly
benefited and favored the petitioner to the prejudice of the other heirs who would
have been entitled to an equal share under the extrajudicial partition of 1949, faced
two alternatives-one, to consider Don Jesus as a man of culture and honor and
would not allow himself to violate the previous agreement, and the other as one
whose mental faculties or his possession of the same had been diminished
considering that when the will was executed, he was already 84 years of age and in
view of his weakness and advanced age, the actual administration of his properties
had been left to his assistant Madarieta who, for his part received instructions from
Francisca and her husband, Joseph Betts. According to the court, the better
explanation is the latter, which is not legally tenable. Under Article 799 of the New
Civil Code which provides as follows:
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the character of
the testamentary act,

The test of testamentary capacity is at the time of the making of the will. Mere
weakness of mind or partial imbecility from disease of body or from age does not
render a person incapable of making a will.
Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity

and while on one hand it has been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing mind, it is not necessary that
the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been
held that testamentary incapacity does not necessarily require that a person shall actually
be insane or of unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).

The Civil Code itself provides under Article 798 that in order to make a will, it is
essential that the testator be of sound mind at the time of its execution, and under
Article 800, the law presumes that every person is of sound mind in the absence of
proof to the contrary. In the case at bar, the acceptance by the respondent court of
the findings of fact of the trial court on the due execution of the last will and
testament of Don Jesus has foreclosed any and all claim to the contrary that the will
was not executed in accordance with the requirements of the law. But more than
that, gleaned from the quoted portions of the appealed decision, the described
behavior of Don Jesus is not that of a mentally incapacitated person nor one
suffering from senile dementia as claimed by private respondents. From these
accepted facts, We find that: (a) it was Don Jesus himself who gave detailed
instructions to his lawyer as to how he wanted to divide his properties among his
children by means of a list of his properties should pertain; (b) the semi-final draft
of the contested will prepared by his lawyer was even corrected by Don Jesus; (c) on
the day of the signing of the will at his house in Ligao, Don Jesus was in bright and
lively spirits x x x, leading in the conversation which ran from problems of farming
and the merits of French-made wines; (d) the signing of the will by Don Jesus and
his attesting witnesses was made after a statement from Don Jesus of the purpose
of their meeting or gathering, to wit:
Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos
de mi ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio
Imperial segun mis instrucciones cuyo documento tengo aqui con migo y encuentro que,
despues de lo he leido, esta satisfactoriamente hecho segun mis in-strucciones, Como saben
ustedes tengo cuatro (4) hijos todos ellos.

Clearly then, Don Jesus knew exactly what his actions were and the full
implications thereof.

In rejecting probate of the will, respondent court further pointed out other details
which, in the words of the decision are a little bit difficult to reconcile with the
ordinary course of things and of life such as the fact that Don Jesus had sought the
probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his
lifetime but insofar as the will of November 14, 1959 is concerned, he had no
intention of seeking the probate thereof during his lifetime, the alleged redundant
and unnecessary proceedings undertaken by Don Jesus in selling the properties
under question to petitioner Francisca Alsua-Betts when the same properties had
already been bequeathed to her in the will of November 14, 1959 and that nothing,
absolutely nothing, could be made the basis for finding that Don Jesus Alsua had
regarded his other children with less favor, and that he was more sympathetic to
Francisca so as to disregard or forget the former depriving them of benefits already
given to them and rewarding the latter with disproportionate advantages or
benefits, to such an extreme as to violate his previous disposition consecrated in the
previous extrajudicial partition, Exh. 8.
We agree with the petitioner that these details which respondent court found
difficult to reconcile with the ordinary course of things and of life are mere
conjectures, surmises or speculations which, however, do not warrant or justify
disallowance of the probate of the will of Don Jesus. The fact that Don Jesus did not
cause his will to be probated during his lifetime while his previous holographic will
and codicil were duly probated when he was still alive is a mere speculation which
depends entirely on the discretion of Don Jesus as the testator. The law does not
require that a will be probated during the lifetime of the testator and for not doing
so there cannot arise any favorable or unfavorable consequence therefrom. The
parties cannot correctly guess or surmise the motives of the testator and neither can
the courts. Such surmise, speculation or conjecture is no valid and legal ground to
reject allowance or disallowance of the will. The same thing can be said as to
whatever reason Don Jesus had for selling the properties to his daughter Francisca
when he had already assigned the same properties to her in his will. While We can
speculate that Don Jesus desired to have possession of the properties transferred to
Francisca after the sale instead of waiting for his death may be a reasonable
explanation or speculation for the act of the testator and yet there is no certainty
that such was actually the reason. This is as good a conjecture as the respondents
may offer or as difficult to accept which respondent court believes. A conjecture is
always a conjecture; it can never be admitted as evidence.

Now, the annulment case. The only issue raised anent the civil case for
annulment of the two Deeds of Sale executed by and between Don Jesus and
petitioner Francisca is their validity or nullity. Private respondents mainly contend
that the sales were fictitious or simulated, there having been no actual
consideration paid. They further insist that the issue raised is a question of fact
and, therefore, not reviewable in a certiorari proceeding before the Supreme Court.
On the other hand, petitioners herein maintain that it was error for the respondent
court to set aside on appeal the factual findings of the trial court that the two sales
were valid.
It is true that the jurisprudence of this Court in cases brought to Us from the
Court of Appeals is limited to reviewing and revising the errors of law imputed to it,
its findings of fact being conclusive; and this same principle applies even if the
Court of Appeals was in disagreement with the lower court as to the weight of
evidence with a consequent reversal of its findings of fact. But what should not be
ignored by lawyers and litigants alike is the more basic principle that the fin-dings
of fact described as final or conclusive are those borne out by the record or those
which are based upon substantial evidence. The general rule laid down by the
Supreme Court does not declare the absolute correctness of all the findings of fact
made by the Court of Appeals. These are exceptions to the general rule, where We
have reviewed and revised the findings of fact of the Court of Appeals. Among the
exceptions to the rule that findings of fact by the Court of Appeals cannot be
reviewed on appeals by certiorari are:
1.When the conclusion is a finding grounded entirely on speculation, surmises or
conjectures (Joaquin vs. Navarro,93 Phil. 257);
2.When the inference made is manifestly mistaken, absurd or impossible (Luna
vs. Linatok, 74 Phil. 15);
3.Where there is a grave abuse of discretion (Buyco vs. People, 51 OG 2927);
4.When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L4875, Nov. 27, 1953);
5.When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30,
1957); and

6.When the Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both appellant and appellee
(Evangelista vs. Alto Surety & Ins, Co., L-11139, April 23, 1958; Ramos vs. Pepsi
Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).
In the case at bar, We find and so declare that the respondent courts conclusion as
to the nullity of the contested sales was not supported by the evidence on record and
adduced during the trial
Evident from the records are the following documentary evidence: (1) Exhibit U,
a deed of sale over agricultural lands executed on August 26, 1961 by Don Jesus in
favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00),
which document bears the signature of Don Jesus, not assailed as a forgery, and the
signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery
nor alleged as done thru fraud, force or threat. (2) Exhibit W, a deed of sale over
urban lots executed on November 26, 1962 for the consideration of Eighty Thousand
Pesos (P80,000.00), which document also bears the signature of Don Jesus, also
admittedly not a forgery. (3) Exhibit F, a document dated August 26, 1961 and
signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of
Philippine Island Check No. 0252 in the amount of Seventy Thousand Pesos
(P70,000.00) for the sale of 33 parcels of agricultural land to Francisca under the
same date; again, Pablo did not deny the genuineness of his signature. (4) Exhibit
X, a Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962,
in the amount of P32,644.71, drawn and signed by Francisca, payable to Don Jesus.
(5) Exhibit X-1, a second Bank of Philippine Islands Check (No. D-6980) also dated
November 26, 1962 in the amount of P47,355.29, drawn by Francisca and payable to
Don Jesus. (6) Exhibit X-3 and X-5, endorsements on the back of the last two
checks by Don Jesus, again, his signatures thereon were not assailed. (7) Exhibit A
(in the annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated
November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of Balance of
Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and satisfied
from this array of documentary evidence that in fact, Don Jesus sold the subject
properties to his daughter, Francisca for the total consideration of P150,000.00.
The claim of the private respondents that the sales were fictitious and void for
being without cause or consideration is as weak and flimsy as the ground upon

which the respondent court upheld said claim on the basis that there was no need
for funds in Don Jesus old age aside from the speculation that there was nothing in
the evidence that showed what motivated Don Jesus to change his mind as to favor
Francisca and discriminate against the other children. The two contracts of sale
executed by Don Jesus in favor of Francisca are evidenced by Exhibits U and W,
the genuineness of which were not at all assailed at any time during this long
drawn-out litigation of 15 years standing. That the consideration stated In the
contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus
were even signed by one of the private respondents, Pablo Alsua, as a witness. The
latter cannot now deny the payment of the consideration. And even if he now allege
that in fact no transfer of money was involved, We find his allegation belied by
Exhibits X-3 and X-5, which show that the checks of Francisca made payable to
Don Jesus were in fact given to Don Jesus as he endorsed them on the back thereof,
and most specifically Exhibit A in the annulment case, which proved that Don
Jesus actually used Exhibit X-1 to complete payment on the estate and inheritance
tax on the estate of his wife to the Bureau of Internal Revenue.
Private respondents further insist that the sales were fraudulent because of the
inadequacy of the given price. Inadequacy of consideration does not vitiate a
contract unless it is proven, which in the case at bar was not, that there was fraud,
mistake or undue influence. (Article 1355, New Civil Code). We do not find the
stipulated price as so inadequate to shock the courts conscience, considering that
the price paid was much higher than the assessed value of the subject properties
and considering that the sales were effected by a father to her daughter in which
case filial love must be taken into account.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is
hereby set aside. The decision of the Court of First Instance of Albay in Special
Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated, with costs
against respondents.
SO ORDERED.
Teehankee (Chairman), Makasiar and Fernandez, JJ., concur.
De Castro, J., took no part.
Melencio Herrera, J., in the result.

Petition granted.
Notes.Where the real intention of the parties is the sale of a piece of land, but
there is a mistake in designating the particular lot to be sold in the document, the
mistake does not vitiate the consent of the parties, or affect the validity and binding
effect of the contract. (Atilano vs. Atilano, 28 SCRA 231).
A sale of land in a private instrument is valid. Delivery of the possession of the
land is a consummation of the sale. (Gallar vs. Husain, 20 SCRA 186).
Where the vendors of a parcel of land delivered its possession to the vendee, and
no superior rights of third persons have intervened, the fact that the deed of sale
has not been registered does not destroy its efficacy insofar as said vendors and their
privies are concerned. (Mahilum vs. Court of Appeals, 17 SCRA 482).
A stipulation in a pacto de retro sale not to repurchase the land within ten years
following the execution of the sale is unlawful. (Tayao vs. Dulay, 13 SCRA 758).
Where submission of project of partition and distribution, with final accounting,
to probate court deemed substantial compliance with Civil Code on liquidation of
conjugal partnership. (Divinagracia vs. Rovira, 72 SCRA 307).
Probate court may provisionally pass upon question of inclusion of a piece of
property in inventory, but final determination should be in a separate action.
(Lacheval vs. Salas, 71 SCRA 262.)
The finality of the approval of the project of partition by itself alone does not
terminate the probate proceeding. As long as the order of the distribution of the
estate has not been complied with the probate proceedings cannot be deemed closed
and terminated. (Guilas vs. Court of First Instance of Pampanga, 43 SCRA 111.)
Probate court may pass upon intrinsic validity of a will before passing upon its
formal validity. (Balanay, Jr., vs. Martirez, 64 SCRA 452.)
No. L-48433. April 30, 1984.

PACITA, FILOMENO, REMEDIOS, ADELAIDA and NELIA, all surnamed

DIMAYUGA, and HEIRS OF SOCORRO DIMAYUGA-LASALA; SERGIO LASALA,

MARCELINO; SATURNINO and Minors AIDA. DANTE, BELEN, LITO, JOHN,

ESTER and EDWIN, all surnamed LASALA, represented by guardian ad
litem Sergio Lasala, petitioners, vs. COURT OF APPEALS and MANUEL
DIMAYUGA, respondents.
Public Land Act; Prescription; No portion of a homestead may be acquired by
prescription.That contention is devoid of merit. It may be morally plausible but it is
legally indefensible. No portion of the homestead, a registered land, may be acquired by
prescription. No title to registered land in derogation to that of the registered owner shall
be acquired by prescription or adverse possession.
Same; Property; Succession; A partition made by a predecessor-in-interest is void if
there is no will or the will is void.Article 1056 of the old Civil Code provides that if the
testator should make a partition of his property by an act inter vivos, or by will, such
partition shall stand insofar as it does not prejudice the legitime of the forced heirs. Article
1056 was construed to mean that a person who makes an inter vivos partition must first
execute a will. If the will is void, the partition is void (Legasto vs. Verzosa, 54 Phil. 766;
Fajardo vs. Fajardo, 54 Phil. 842; Romero vs. Villamor, 102 Phil. 641). With more reason
would the partition be void if there was no will.
Same; Same; Same; Upon the death of the mother, 1/2 of the homestead is inherited by
the only child of its parents. In the other half, said child, and another by a subsequent
marriage had a 2/3 legitime from their fathers share.The 1948 partition was not in
conformity with law. It assumed that Genaro was the owner of the entire homestead. That
is wrong. One-half of the homestead, subject to the husbands usufructuary legitime, was
inherited in1940 by Manuel upon the death of his mother who was married to Genaro for
twenty-five years, Genaro could dispose by an act inter vivos only one-half of the
homestead In that one-half portion, Manuel and Nelia, as Genaros legal and forced heirs,
had a two-third legitime.
Donation; Succession; Property; Contracts; A partition by and among a father, his
illegitimate children and legitimate children is void if it amounts to a renunciation of future
inheritance.In donating the said one-half portion to his six illegitimate children, Genaro
deprived Manuel of his legitime in his estate or, in effect, made him renounce his future
inheritance. The 1951 affidavit cannot be construed as a repudiation of his inheritance in
his fathers estate because the document does not have that tenor. For this reason, Manuel
is not estopped to ignore that partition. The rule in Alforque vs. Veloso, 65 Phil. 272, cited
by the petitioners, does not apply to Manuel. The facts in theAlforque case are radically
different from the facts of the instant homestead case.

Succession; Support; Spurious or illegitimate children have no successional rights;

They enjoy only the right to support.The five illegitimate children (the sixth child Nelia
was legitimated) have no rights whatsoever to the said homestead. As already said, they
were adulterous or spurious children.
Same; Same; Same.As such, they are not entitled to successional rights but only to
support (Art. 139, old Civil Code; Reyes vs. Zuzuarregui, 102 Phil. 346; Olivete vs. Mata,
100 Phil. 563; Javelona vs. Monteclaro, 74 Phil. 393; Lagrimas vs. Lagrimas, 95 Phil. 113;
Ramirez vs. Gmur, 42 Phil. 855).

PETITION to review the judgment of the Court of Appeals.

The facts are stated in the opinion of the Court.
Teresita Infantado-Gines for petitioners.
Renato Leviste for respondents.
AQUINO, J.:
This case is about the effect of a partition inter vivos on the successional rights to a
thirteen-hectare homestead located at Pola, Oriental Mindoro.
The spouses Genaro Dimayuga and Segunda Gayapanao, who were married in
1915 (Exh. 2), acquired a Torrens title for that homestead in 1928 (Exh. 1). Segunda
died intestate in 1940, survived by her son, Manuel, and her husband, Genaro.
During their marriage, Genaro had a mistress named Emerenciana Panganiban
by whom he begot five children, named Filomeno, Pacita, Adelaida, Remedios and
Socorro. A sixth child, Nelia Dimayuga, was born in 1944 or after Segundas death.
Emerenciana cultivated a homestead adjoining the thirteen-hectare homestead in
question. So, it was not surprising that she became the paramour of Genaro.
Genaro, 56, married Emerenciana, 37, on February 26, 1947 (Exh. 3). That
marriage legitimated Nelia, who had been a duly acknowledged natural child, but it
did not improve the status of her brother and four sisters who were adulterous or
spurious children.

On September 16, 1948, or about a month before Genaros death a partition of

real property was executed in English. It was duly notarized. It was signed by
Genaro, Manuel, Filomeno and Pacita and thumbmarked by Emerenciana, in
representation of her minor children Adelaida, Remedios, Socorro and Nelia (Exh.
A), though Emerenciana had not been appointed judicial guardian of their property.
The document states the ages of the children as Pacita, 22, Filomeno, 19,
Adelaida, 17, Remedios, 15, Socorro, 13, and Nelia, 4. But their birth certificates
show that they were all minors. Filomeno and Pacita were twins born on December
25, 1929; Remedios and Adelaida were also twins born on January 2, 1932; Socorro
was born in 1938 and Nelia, as already noted, in 1944 (Exh. 4 to 9).
In that partition, which the petitioners also regard as a donation, Genaro treated
the homestead as his sole property and not conjugal, which it actually was (Pisalbon
vs. Bejec, 74 Phil. 288; Tabunan vs. Marigmen, 101 Phil. 288). Manuel was given as
share five and one-half hectares of the homestead (southern portion
adjoiningEmerencianas separate homestead). The six illegitimate children were
given seven and seven-tenth hectares (northern portion also adjoining
Emerencianas separate homestead). The partition was not registered.
The partition was amended in 1951 by means of an affidavit in Tagalog signed by
the same parties except Genaro who died intestate on October 8, 1948. An
additional one hectare was given to Manuel, making his total share six and fivetenth hectares. The 1948 partition prejudiced him because ang ginawang
paghahati ni Genaro Dimayuga ay hindi tumpak sapagkat naapi si Manuel
Dimayuga (Exh. B).
Nineteen years later, or on May 28, 1970, Manuel having been advised that the
entire homestead was inherited by him from his parents and freed from his fathers
moral ascendancy, executed an affidavit of adjudication which he registered. He
obtained a Torrens title for the thirteen-hectare homestead (Exh. 1).
About two months later, the six illegitimate children filed a complaint for the
annulment of Manuels title and for the division of the homestead equally among
Genaros seven children including Manuel. The parties submitted a partial
stipulation of facts. The plaintiffs offered the partition and the amendatory affidavit
as their documentary evidence (Exh. A and B). On the other hand, Manuels

documentary evidence consisted of his title, the marriage contracts of his parents
and of Genaro and Emerenciana and the birth certificates of the illegitimate
children (Exh. 1 to 9).
There was no oral evidence. The parties submitted the case on pure questions of
law (p. 15, Record on Appeal). The trial court annulled Manuels title, decreed that
about one-half of the homestead should be divided equally among the six
illegitimate children and ordered Manuel to pay them P2,500 as moral and
exemplary damages and attorneys fees.
Manuel appealed to the Court of Appeals which adjudicated to him three-fourth
of the homestead and the other one-fourth to Nelia. The six illegitimate children
appealed to this Court. We gave due course to the appeal because of their contention
that since the case involved only legal questions the Appellate Court had no
jurisdiction over it. We treated the case as if it had been directly appealed from the
trial court to this Court.
The petitioners or the six illegitimate children admit that the Appellate Court
correctly applied the law by adjudicating three-fourth of the homestead to Manuel
and one-fourth to Nelia (p. 10, Brief). However, they contend that their possession of
about one-half of the homestead since the 1948 partition made them owners by
prescription and that Manuel is estopped to deny that fact because he adjudicated
the homestead to himself only twenty-two years later.
That contention is devoid of merit. It may be morally plausible but it is legally
indefensible. No portion of the homestead, a registered land, may be acquired by
prescription. No title to registered land in derogation to that of the registered
owner shall be acquired by prescription or adverse possession. (Sec. 46, Act No. 496;
Sec. 47, Property Registration Decree, P.D. No. 1529; Art. 1126, Civil Code.)
The petitioners cite Parcotilo vs. Parcotilo, 120 Phil. 1231. That case
involves unregistered land, which was held by the claimant and his predecessors for
over thirty years, an extraordinary prescription. It was immaterial that the
testament in that case was void.
Article 1056 of the old Civil Code provides that if the testator should make a
partition of his property by an actinter vivos, or by will, such partition shall stand
insofar, as it does not prejudice the legitime of the forced heirs. Article 1056 was

construed to mean that a person who makes an inter vivos partition must first
execute a will. If the will is void, the partition is void (Legasto vs. Verzosa,54 Phil.
766; Fajardo vs. Fajardo, 54 Phil. 842; Romero vs. Villamor, 102 Phil. 641). With
more reason would the partition be void if there was no will.
The 1948 partition was not in conformity with law. It assumed that Genaro was
the owner of the entire homestead. That is wrong. One-half of the homestead,
subject to the husbands usufructuary legitime, was inherited in 1940 by Manuel
upon the death of his mother who was married to Genaro for twenty-five years.
Genaro could dispose by an act inter vivos only one-half of the homestead. In that
one-half portion, Manuel and Nelia, as Genaros legal and forced heirs, had a twothird legitime.
In donating the said one-half portion to his six illegitimate children, Genaro
deprived Manuel of his legitime in his estate or, in effect, made him renounce his
future inheritance. The 1951 affidavit cannot be construed as a repudiation of his
inheritance in his fathers estate because the document does not have that tenor. For
this reason, Manuel is not estopped to ignore that partition. The rule in Alforque vs.
Veloso, 65 Phil. 272, cited by the petitioners, does not apply to Manuel. The facts in
theAlforque case are radically different from the facts of the instant homestead case.
The five illegitimate children (the sixth child Nelia was legitimated) have no
rights whatsoever to the said homestead. As already said, they were adulterous or
spurious children.
Desde de las leyes de Partida, la ciencia y la ley suponen, en todas sus determinaciones, la
existencia bien caracterizada de los dos grupos de hijos adulterinos: unos, los simplemente
adulterinos, ex damnato coitu de daado ayuntamiento, los nacidos de mujer soltera
viuda y de hombre casado; y otrosnotos, ex damnato et punibili coitu de daado y punible
ayuntamiento, los nacidos de mujer casada, cualquiera que sea el estado del hombre, porque
la madre, en algunos casos, incurria en la pena de muerte. (17 Enciclopedia Juridica
Espaola, p. 780-1).

As such, they are not entitled to successional rights but only to support (Art. 139,
old Civil Code; Reyes vs. Zuzuarregui, 102 Phil. 346; Olivete vs. Mata, 100 Phil.
563;Javelona vs. Monteclaro, 74 Phil. 393; Lagrimas vs. Lagrimas, 95 Phil. 113;

Ramirez vs. Gmur, 42 Phil. 855). Manuel and Nelia, as Genaros legal and forced
heirs, are entitled to inherit Genaros one-half portion. It cannot be said that the
five adulterous children have no resources whatsoever. Their mother, Emerenciana,
has a homestead adjoining Genaros homestead in question.
WHEREFORE, the trial courts judgment is reversed and set aside. Three-fourth
of the said homestead is hereby adjudicated to Manuel Dimayuga and one-fourth to
Nelia Dimayuga. The register of deeds should cancel Manuels title and issue the
corresponding titles in accordance with this decision. No costs.
SO ORDERED.
Makasiar, (Chairman), Concepcion, Jr., Guerrero,Abad Santos and Escolin,
JJ., concur.
De Castro, J., no part.
Judgment reversed and set aside.
Notes.Residential purposes as used in R.A. 730, does not preclude use of
public land applied for private purchase for commercial purposes, such as putting
up a storage thereat, where the applicant uses it principally as a dwelling place.
(Reyes vs. Court of Appeals, 125 SCRA 785.)
No registrable title over public lands can be confirmed in cadastral proceedings.
A cadastral court is only empowered to issue a decree declaring that the lots sought
to be registered arc public lands. (Francisco vs. Sec. of Agriculture and Natural
Resources, 121 SCRA 380.)
In a petition for cancellation of free patent with the Bureau of Lands, review by
the courts will not be permitted unless the administrative remedies are first
exhausted. (Pastaas vs. Dyogi, 81 SCRA 754.)
The Register of Deeds is liable for damages for malicious issuance of a second
duplicate certificate of Torrens title without the required notice of hearing. (Vda. de
Laig vs. Court of Appeals, 82 SCRA 294.)

R.A. 6330 does not apply to reopening of cadastral proceedings but only to free
patent application and judicial confirmation of imperfect titles. (Republic vs.
Estenzo, 99 SCRA 651.)
o0o

G.R. No. 68282. November 8, 1990.

RAQUEL CHAVEZ, GERARDO GIMENEZ and MANUELA BUENAVISTA VDA.

DE CHAVEZ, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT (4th
Civil Cases Division), ANTONIO CHAVEZ, ROSARIO CHAVEZ and CONCEPCION
CHAVEZ, respondents.
Civil Law; Property; Partition; While the law prohibits contracts upon future
inheritance, the partition by the parent as provided in Art. 1080 is a case expressly
authorized by law.Article 1080 of the New Civil Code allows a person to make a partition
of his estate either by an act inter vivos or by will and such partition shall be respected
insofar as it does not prejudice the legitime of the compulsory heirs. While the law prohibits
contracts upon future inheritance, the partition by the parent, as provided in Art. 1080, is a
case expressly authorized by law.

Same; Same; Same; Art. 1080 of the Civil Code clearly gives a person two options in
making a partition of his estate either by an act inter vivos or by will. Art. 1080 of the Civil
Code clearly gives a person two options in making a partition of his estate; either by an
act inter vivos or by WILL. When a person makes a partition by will, it is imperative that
such partition must be executed in accordance with the provisions of the law on wills;
however, when a person makes the partition of his estate by an act inter vivos,such partition
may even be oral or written, and need not be in the form of a will, provided that the
partition does not prejudice the legitime of compulsory heirs.
Same; Same; Same; Sale; The Deeds of Sale are not contracts entered into with respect
to future inheritance but a contract perfected and consummated during the lifetime of
Manuela Buenavista who signed the same and gave her consent thereto.In the instant
case, the respondent appellate court declared the Deeds of Sale executed by Presentacion,
Floserfina and Raquel, all surnamed Chavez (Exhs. A, B, and C) in favor of Concepcion
Chavez as evidence of a valid partition of the land in question by and between Manuela
Buenavista and her children as she not only gave her authority thereto but also signed the
sales. The Deeds of Sale (Exhs. A, B, and C) are not contracts entered into with respect to
future inheritance but a contract perfected and consummated during the lifetime of
Manuela Buenavista who signed the same and gave her consent thereto. Such
partitioninter vivos, executed by the property owner herself, is valid.

PETITION for certiorari to review the decision of the then Intermediate Appellate
Court.
The facts are stated in the opinion of the Court.
Edmundo A. Narra for petitioners.
Jose L. Lapak for respondents.
GRIO-AQUINO, J.:
This is a petition for review on certiorari of the decision dated March 26, 1984 of the
Intermediate Appellate Court in AC-G.R. No. CV-64708 which (1) annulled the sale
made by Manuela Buenavista of her property in favor of the spouses Raquel Chavez
and Gerardo Gimenez (Exh. 2) and the subsequent sale by said spouses of the same
property to Pepito Ferrer, and (2) declared that the earlier deeds of sale (Exhs. A, B,
C and D) signed by Manuela and her children constituted a valid partition of the
land, subject to her lifetime usufruct. The Court of Appeals thereby reversed the

decision dated December 21, 1971 of the Court of First Instance of Camarines
Norte, Branch 1.
The land in question is the paraphernal property of petitioner Manuel
Buenavista (defendant in Civil Case No. 1934 of the Court of First Instance of
Camarines Norte) who had six (6) children, named Antonio, Rosario, Concepcion,
Raquel, Presentacion and Floserpina. The first three were the plaintiffs and the last
three, with their mother, were the defendants in Civil Case No. 1934.
On July 11, 1958, Presentacion Chavez, with the conformity of her mother,
Manuela Buenavista, executed a deed of sale whereby she sold her 1/6 undivided
share of the land in question to her sister, Concepcion Chavez, for P450.
Two years later, on May 2, 1960, Floserpina Chavez, with the conformity of her
mother, also sold her 1/6 undivided share of the same land to her sister, Concepcion,
for the same price of P450. On May 19, 1960, Raquel, with the conformity of her
mother, likewise sold her undivided 1/6 share of the same property to Concepcion
Chavez for P600. Having acquired the shares of Presentacion, Floserpina and
Raquel, Concepcion thereby became the owner of a total undivided 4/6 share of the
land in question with Antonio and Rosario as owners of the remaining 2/6 shares.
In all the documents, the following stipulation appears:
Na ang nasabing lupa o pag-aari ay ipinamana na sa amin ng aming ina, ang nasabing
Manuela Buenavista, kung kaya ito ay hatiin naming anim (6) na mga magkakapatid,
bagamat hindi pa namin naisasagawa ang paghihiwatig o particion; ako bilang isa sa anim
na magkakapatid ay may karapatan sa isang ikaanim (1/6) na bahagi ng nasabing lupa,
gayon pa man ang kasunduan sa nasabing pagkamana namin ay samantalang nabubuhay
pa ang aming ina, siya ang magkakandili at makikinabang sa nasabing pag-aari. (p. 14,
Rollo.)

meaning that the owner, Manuela Buenavista, had assigned or distributed to her
children, in equal pro-indiviso shares, her paraphernal property situated at Sitio
Langas, Barrio Calangcawan Norte, Vinzons, Camarines Norte, with an area of
4.1163 hectares more or less under Tax Declaration No. 9303 and assessed at
P1,630.00. The owner, however, reserved for herself the possession of the land and
the enjoyment of the fruits during her lifetime.

Despite the transfers or assignments her children had executed with her
conformity ten years earlier, Manuela Buenavista, on August 27, 1968, signed a
Bilihang Patuluyan ng Lupa of the entire property in favor of her daughter,
Raquel Chavez, and her husband, Gerardo Jimenez. On October 7, 1968, Antonio,
Rosario and Concepcion filed Civil Case No. 1934 against their mother Manuela and
their sister Raquel. Thereupon, Manuela sold the entire property to Pepito Ferrer,
on February 4, 1969 (Exh. F) with right to repurchase. Ferrer was later sued as an
additional defendant in Civil Case No. 1934.
After the trial, judgment was rendered by the trial court dismissing the
complaint, dissolving the preliminary injunction it had previously issued, and
ordering the plaintiffs to pay the costs. The court did not award damages.
The plaintiffs, Antonio, Rosario and Concepcion, appealed to the Court of
Appeals (CA-G.R. No. 64708-R).
On March 26, 1984, the Court of Appeals reversed the trial court. The dispositive
portion of its decision reads:
WHEREFORE, we reverse and set aside the appealed decision and render another one
declaring the deeds of sale in favor of Raquel Chavez and Gerardo Jimenez (Exh. 2) and the
sale in favor of defendant-appellee Pepito Ferrer as null and void ab initio, and declaring
further that the documents (Exhs. A, B, C and D) are evidence of a valid partition of the
land in question by and between Manuela Buenavista and her children, subject to her right
of usufruct during her lifetime, without pronouncement as to damages and costs. (p. 17,
Rollo.)

On April 5, 1984, the petitioners filed a motion for reconsideration alleging among
others:
3. That the late Manuela Buenavista Vda. de Chavez, one of the defendants-appellees, was
found lately to have executed during her lifetime a LAST WILL AND TESTAMENT x x x
and there is now a pending petition for probate of said last will and testament before the
Municipal Trial Court of Vinzons, Camarines Norte;
x x x

xxx

xxx

1. 6.In the case at bar, even granting that the late Manuela Buenavistas execution of
the documents referred to as Exhibits A, B, C and D are valid, nevertheless its

validity ceases from the time that she executed the Last Will and Testament x x x
because the execution of the Last Will invalidates the former act of the said
Manuela Buenavista;
2. 7.That the Last Will and Testament x x x which is now pending probate in the
Municipal Trial Court of Vinzons, Camarines Norte, will finally affect the property
hence, there is a ground for this motion for reconsideration and/or to suspend the
decisionpending final outcome of the probate of the last will and testament of the
late Manuela Buenavista. (pp. 88-89, Rollo.)

Private respondents opposed the Motion for Reconsideration asserting that the
partition inter vivoswhich had been implemented long before the execution of the
said Last Will and Testament could not be revoked by the later instrument; that the
supposed Last Will and Testament was executed on December 11, 1969, more than
one year after the filing of the complaint for annulment on October 9, 1968, when
said Manuela Buenavista was already senile and not of disposing mind; that while
Manuela Buenavista was able to sign with her own hand the several Deeds of Sale,
the supposed Last Will and Testament bears her thumbmark only; that Manuela
Buenavista had no more property to dispose of by will on December 11, 1969, when
she supposedly executed her Last Will and Testament.
On June 28, 1984, the Appellate Court denied the Motion for Reconsideration.
In their petition for review of the decision of the Court of Appeals, the petitioners
allege:
1. (1)That the Intermediate Appellate Court (now Court of Appeals) erred in declaring
valid the deeds of sale (Exhs. A, B, C and D) as a partition by an act inter
vivosconsidering that examining the said exhibits will reveal that it is not a
testament amounting to a will of Manuela Buenavista;
2. (2)That the Intermediate Appellate Court erred in ruling against Article 1347 of
the New Civil Code. (p. 126, Rollo.)

We find those contentions not well-taken.

Article 1080 of the New Civil Code allows a person to make a partition of his
estate either by an act inter vivos or by willand such partition shall be respected
insofar as it does not prejudice the legitime of the compulsory heirs. While the law

prohibits contracts upon future inheritance, the partition by the parent, as provided
in Art. 1080, is a case expressly authorized by law (Art. 1347, par. 2, Civil Code of
the Phil. by Padilla, 1987 Edition, p. 744.) Art. 1080 of the Civil Code clearly gives a
person two options in making a partition of his estate; either by an act inter vivos or
by WILL. When a person makes a partition by will, it is imperative that such
partition must be executed in accordance with the provisions of the law on wills;
however, when a person makes the partition of his estate by an act inter vivos, such
partition may even be oral or written, and need not be in the form of a will, provided
that the partition does not prejudice the legitime of compulsory heirs.
In numerous cases it has been held or stated that parol partitions may be sustained on the
ground of estoppel of the parties to assert the rights of a tenant in common as to parts of
land divided by parol partition as to which possession in severalty was taken and acts of
individual ownership were exercised. And a court of equity will recognize the agreement
and decree it to be valid and effectual for the purpose of concluding the right of the parties
as between each other to hold their respective parts in severalty.
A parol partition may also be sustained on the ground that the parties thereto have
acquiesced in and ratified the partition by taking possession in severalty, exercising acts of
ownership with respect thereto, or otherwise recognizing the existence of the partition.
(Hernandez vs. Andal, et al., 78 Phil. 196, 203.)

In the instant case, the respondent appellate court declared the Deeds of Sale
executed by Presentacion, Floserfina and Raquel, all surnamed Chavez (Exhs. A, B,
and C) in favor of Concepcion Chavez as evidence of a valid partition of the land in
question by and between Manuela Buenavista and her children as she not only gave
her authority thereto but also signed the sales. The Deeds of Sale (Exhs. A, B, and
C) are not contracts entered into with respect to future inheritance but a contract
perfected and consummated during the lifetime of Manuela Buenavista who signed
the same and gave her consent thereto. Such partition inter vivos, executed by the
property owner herself, is valid.
x x x As the defendants freely participated in the partition, they are now estopped from
denying and repudiating the consequences of their own voluntary acts. It is a general
principle of law that no one may be permitted to disavow and go back upon his own acts, or
to proceed contrary thereto. (Joaquin vs. Mitsumine, 34 Phil. 858.)
Where a piece of land has been included in a partition, and there is no allegation that
the inclusion was effected through improper means or without the petitioners knowledge,

the partition barred any further litigation on said title and operated to bring the property
under the control and jurisdiction of the court for proper disposition according to the tenor
of the partition. . . They cannot attack the partition collaterally x x x. (Ralla vs. Judge
Untalan, 172 SCRA 858, 865, citing the case of Torres vs. Encarnacion and De Borja, No. L4681, July 31, 1951, 89 Phil. 678.)

As well argued by counsel for the respondents in their memorandum, it would be

unjust and inequitable to allow Manuela Buenavista Vda. de Chavez to revoke the
sales she herself authorized as well as the sale she herself executed in favor of her
son only to execute a simulated sale in favor of her daughter Raquel who had
already profited from the sale she made of the property she had received in the
partition inter vivos; it would run counter to the doctrine that no person should be
allowed to unjustly enrich herself at the expense of another.
WHEREFORE, finding no reversible error in the decision of the Court of Appeals
in AC-G.R. No. CV-64708, the same is affirmed in toto. The petition for review is
dismissed for lack of merit, with costs against the petitioners.
SO ORDERED.
Narvasa (Chairman), Cruz, Gancayco and Medialdea, JJ., concur.
Decision affirmed. Petition dismissed.
Note.The sale by one co-owner of part of a particular lot co-owned is within his
right pro-indiviso is valid in its entirety but he may not convey a physical portion
with boundaries of the land owned in common. (Del Banco vs. Intermediate
Appellate Court, 156 SCRA 55.)
o0o

G.R. No. 152132. July 24, 2007.

LORDITO ARROGANTE, JOHNSTON ARROGANTE, ARME ARROGANTE, and

FE D. ARROGANTE, petitioners, vs. BEETHOVEN DELIARTE, Joined by
SPOUSE LEONORA DUENAS, respondents.
Civil Law; Contracts; Property; Partition; A contract entered into upon future
inheritance characterized as void under Article 1347, paragraph 2 of the Civil Code;
Requisites for the Application of the Law.The 1978 private deed of sale, insofar as it
disposed of Bernabes share in the conjugal partnership prior to his death, is void for being
a conveyance of the Deliarte siblings future inheritance. Article 1347, paragraph 2 of the
Civil Code characterizes a contract entered into upon future inheritance as void. The law
applies when the following requisites concur: (1) the succession has not yet been opened; (2)
the object of the contract forms part of the inheritance; and (3) the promissor has, with
respect to the object, an expectancy of a right which is purely hereditary in nature.
Same; Same; Same; The prohibition on contracts respecting future inheritance admits
of exceptions as when a person partitions his estate by an act inter vivos under Article 1080
of the Civil Code. True, the prohibition on contracts respecting future inheritance admits
of exceptions, as when a person partitions his estate by an act inter vivos under Article 1080
of the Civil Code. However, the private deed of sale does not purport to be a partition of
Bernabes estate as would exempt it from the application of Article 1347. Nowhere in the
said document does Bernabe separate, divide, and assign to his children his share in the
subject lot effective only upon his death. Indeed, the document does not even bear the
signature of Bernabe.
Same; Same; Same; Partition of property representing future inheritance cannot be
made effective during the lifetime of its owner.Neither did the parties demonstrate that
Bernabe undertook an oral partition of his estate. Although we have held on several
occasions that an oral or parole partition is valid, our holdings thereon were confined to
instances wherein the partition had actually been consummated, enforced, and recognized
by the parties. Absent a showing of an overt act by Bernabe indicative of an unequivocal
intent to partition his estate among his children, his knowledge and ostensible acquiescence
to the private deed of sale does not equate to an oral partition by an act inter vivos.Besides,

partition of property representing future inheritance cannot be made effective during the
lifetime of its owner.
Same; Parole Evidence; The failure of the deed of sale to express the true intent and
agreement of the parties supports the application of the parole evidence rule.The parole
evidence rule is applicable. While the application thereof presupposes the existence of a
valid agreement, the innominate contract between the parties has been directly put in issue
by the respondents. Verily, the failure of the deed of sale to express the true intent and
agreement of the parties supports the application of the parole evidence rule.
Contracts; Statute of Frauds; The Statute of Frauds applies only to executory, not to
completed, executed, or partially consummated contracts.We agree with both the lower and
the appellate courts that the Statute of Frauds is not applicable to the instant case. The
general rule is that contracts are valid in whatever form they may be. One exception thereto
is the Statute of Frauds which requires a written instrument for the enforceability of a
contract. However, jurisprudence dictates that the Statute of Frauds only applies to
executory, not to completed, executed, or partially consummated, contracts.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Zosa and Quijano Law Offices for petitioners.
Florido and Associates for respondents.
NACHURA, J.:
This Petition for Review on Certiorari assails the Decision dated August 28, 2001 of
the Court of Appeals (CA) in CA-G.R. CV No. 58493 which affirmed the
Decision dated February 18, 1997 of the Regional Trial Court (RTC), Branch 10, of
Cebu City in an action for quieting of title and damages.
1

It appears that the lot in controversy, Lot No. 472-A (subject lot), is situated
in Poblacion Daanbantayan, Cebu, and was originally conjugal property of the
spouses Bernabe Deliarte, Sr. and Gregoria Placencia who had nine children,
including herein respondent Beethoven Deliarte and petitioner Fe Deliarte
Arrogante. The other petitioners, Lordito, Johnston, and Arme, Jr., all surnamed

Arrogante, are the children of Fe and, thus, nephews of Beethoven. Respondent

Leonora Duenas is the wife of Beethoven.
A series of misfortunes struck the Deliarte family. The first tragedy occurred when a
brother of Beethoven and Fe was hospitalized and eventually died in Davao.
Beethoven shouldered the hospitalization and other related expenses, including the
transport of the body from Davao to Cebu and then to Daanbantayan.
The next occurrence took place a year after, when Gregoria was likewise
hospitalized and subsequently died on July 29, 1978. Once again, Beethoven paid for
all necessary expenses. Soon thereafter, it was Bernabe, the parties ailing father,
who died on November 7, 1980. Not surprisingly, it was Beethoven who spent for
their fathers hospitalization and burial.
In between the deaths of Gregoria and Bernabe, on November 16, 1978, the
Deliarte siblings agreed to waive and convey in favor of Beethoven all their rights,
interests, and claims to the subject lot in consideration of P15,000.00. At the
signing of the deed of absolute sale, the siblings who failed to attend the family
gathering, either because they were dead or were simply unable to, were
represented by their respective spouses who signed the document on their
behalf. Bernabe, who was already blind at that time, was likewise present and
knew of the sale that took place among his children.
3

Thus, from then on, Beethoven occupied and possessed the subject lot openly,
peacefully, and in the concept of owner. He exercised full ownership and control over
the subject lot without any objection from all his siblings, or their heirs, until 1993
when the controversy arose. In fact, on March 26, 1986, all of Beethovens siblings,
except Fe, signed a deed of confirmation of sale in favor of Beethoven to ratify the
1978 private deed of sale.
5

Sometime in August 1993, petitioner Lordito Arrogante installed placards on the

fence erected by respondents, claiming that the subject lot was illegally acquired by
the latter. The placards depicted Beethoven as a land grabber who had
unconscionably taken the subject lot from Lordito who claimed that the lot is a
devise from his grandfather. Allegedly, the bequeathal was made in Bernabes last
will and testament which was, unfortunately, torn up and destroyed by Beethoven.
6

Thus, on November 10, 1993, respondents filed an action for quieting of title and
damages against the petitioners.
In their answer, the petitioners averred that Beethoven does not own the whole of
the subject lot because Bernabe was still alive in 1978 when Beethovens siblings
sold to him all their rights and claims to and interests in that lot. Thus, the siblings
could sell only their respective inheritance from one-half of the subject lot,
representing Gregorias share in the conjugal property. Corollarily, the petitioners
claimed that Fe continues to own 1/9 of one-half of the subject lot, comprising
Bernabes share of the property, which allegedly was not contemplated in the
conveyance in 1978. According to petitioners, this contention is supported by Fes
failure to sign the deed of confirmation of sale in 1986.
As regards the damaging placards, the petitioners asseverated that Lordito acted
on his own when he installed the same, and that this was resorted to merely to air
his grievance against his uncle, Beethoven, for claiming ownership of the entire lot.
After trial, the RTC rendered a Decision quieting title on the subject lot in favor
of respondents and directing petitioners, jointly and severally, to pay the
respondents P150,000.00 as moral damages, P25,000.00 as attorneys fees, and
P10,000.00 as litigation expenses.
On appeal, the CA affirmed the trial courts decision but deleted the award of
attorneys fees and litigation expenses. In ruling for the respondents, both the trial
and appellate courts upheld the validity of the 1978 sale as between the parties.
Considering that petitioner Fe signed the document and consented to the
transaction, she is now barred from repudiating the terms thereof. In this regard,
the RTC and the CA applied the parole evidence rule and allowed the introduction
of evidence on the additional consideration for the conveyance, namely, the expenses
incurred by Beethoven during the three tragedies that had befallen the Deliarte
family. Both courts found that the sale was already completely executed, thus
removing it from the ambit of the Statute of Frauds.
9

As for the award of moral damages, the trial and appellate courts held that the
other petitioners failure to prevent Lordito from putting up, or at least, removing
the placards, amounted to the defamation and opprobrium of Beethoven with their
knowledge and acquiescence. Thus, the assessment of moral damages was

appropriate, given the humiliation and embarrassment suffered by Beethoven

considering his stature and reputation in the community as an electrical engineer
handling several big projects.
However, petitioners insist that the lower courts erred in their rulings. They
maintain that the 1978 sale did not contemplate the alienation of Bernabes share
in the conjugal partnership as he failed to sign the private document. As such, the
courts application of the parole evidence rule and the Statute of Frauds were
erroneous. In the same vein, the petitioners posit that both courts ruling that they
are jointly and severally liable for moral damages is inconsistent with the evidence
on record that Lordito was the sole author of the damaging placards.
In this appeal, the issues for the resolution of this Court are:
I.
WHETHER OR NOT THE PRIVATE DEED OF SALE EXECUTED IN 1978 IS A VALID
CONVEYANCE OF THE ENTIRE LOT 472-A TO PETITIONER BEETHOVEN
DELIARTE.
II.
WHETHER OR NOT THE PAROLE EVIDENCE RULE IS APPLICABLE TO THIS
CASE.
III.
WHETHER OR NOT THE STATUTE OF FRAUDS IS APPLICABLE TO THIS CASE.
IV.
WHETHER OR NOT THE PETITIONERS ARE JOINTLY AND SEVERALLY LIABLE
FOR MORAL DAMAGES.

At the outset, we note that both the lower and the appellate courts failed to identify
the applicable law.
First. The 1978 private deed of sale, insofar as it disposed of Bernabes share in
the conjugal partnership prior to his death, is void for being a conveyance of the
Deliarte siblings future inheritance.

Article 1347, paragraph 2 of the Civil Code characterizes a contract entered into
upon future inheritance as void. The law applies when the following requisites
concur: (1) the succession has not yet been opened; (2) the object of the contract
forms part of the inheritance; and (3) the promissor has, with respect to the object,
an expectancy of a right which is purely hereditary in nature.
10

11

In this case, at the time the contract was entered into, succession to Bernabes
estate had yet to be opened, and the object thereof, i.e., Bernabes share in the
subject lot, formed part of his childrens inheritance, and the children merely had an
inchoate hereditary right thereto.
True, the prohibition on contracts respecting future inheritance admits of
exceptions, as when a person partitions his estate by an act inter vivos under Article
1080 of the Civil Code. However, the private deed of sale does not purport to be a
partition of Bernabes estate as would exempt it from the application of Article 1347.
Nowhere in the said document does Bernabe separate, divide, and assign to his
children his share in the subject lot effective only upon his death. Indeed, the
document does not even bear the signature of Bernabe.
12

13

Neither did the parties demonstrate that Bernabe undertook an oral partition of his
estate. Although we have held on several occasions that an oral or parole partition is
valid, our holdings thereon were confined to instances wherein the partition had
actually been consummated, enforced, and recognized by the parties. Absent a
showing of an overt act by Bernabe indicative of an unequivocal intent to partition
his estate among his children, his knowledge and ostensible acquiescence to the
private deed of sale does not equate to an oral partition by an act inter
vivos. Besides, partition of property representing future inheritance cannot be made
effective during the lifetime of its owner.
14

15

Considering the foregoing, it follows that the 1986 deed of confirmation of sale
which sought to ratify the 1978 sale likewise suffers from the same infirmity. In
short, the 1986 deed is also void.
16

Nevertheless, it is apparent that Bernabe treated his share in the subject lot as
his childrens present inheritance, and he relinquished all his rights and claim
thereon in their favor subject to Beethovens compensation for the expenses he
initially shouldered for the family. The records reveal that Bernabe, prior to his
17

hospitalization and death, wanted to ensure that his children attended to the
expenditure relating thereto, and even articulated his desire that such surpass the
provision for both his son and wife, Beethovens and Fes brother and mother,
respectively. Their arrangement contemplated the Deliarte siblings equal
responsibility for the familys incurred expenses.
18

We take judicial notice of this collective sense of responsibility towards family. As

with most nuclear Filipino families, the Deliarte siblings endeavored to provide for
their parents or any member of their family in need. This was evident in Florenda
Deliarte Nacuas, the youngest Deliarte siblings, remittance to her parents of her
salary for two years so they could redeem the subject lot.
19

Florenda corroborated the testimony of Beethoven that their father was present
during, and was aware of, the transaction that took place among his children. The
1978 deed of sale, albeit void, evidenced the consent and acquiescence of each
Deliarte sibling to said transaction. They raised no objection even after Beethoven
forthwith possessed and occupied the subject lot.
20

The foregoing arrangement, vaguely reflected in the void deed of sale, points to a
meeting of the minds among the parties constitutive of an innominate contract, akin
to both an onerous and a remuneratory donation. In this regard, Bernabes waiver
and relinquishment of his share in the subject lot is effectively a donation inter
vivos to his children. However, the gratuitous act is coupled with an onerous cause
equal accountability of the Deliarte siblings for the hospitalization and death
expenses of deceased family members to be taken from their shares in the subject
lot. In turn, the remunerative cause pertains to Beethovens recompense for the
family expenses he initially shouldered.
21

During his lifetime, Bernabe remained the absolute owner of his undivided interest
in the subject lot. Accordingly, he could have validly disposed of his interest therein.
His consent to the disposition of the subject lot in favor of Beethoven, agreed upon
among his children, is evident, considering his presence in, knowledge of, and
acquiescence to the transaction. Further, the arrangement was immediately effected
by the parties with no objection from Bernabe or any of the Deliarte siblings,
including herein petitioner Fe. Ineluctably, the actual arrangement between the
parties included Bernabe, and the object thereof did not constitute future
inheritance.

Second. The parole evidence rule is applicable. While the application thereof
presupposes the existence of a valid agreement, the innominate contract between
the parties has been directly put in issue by the respondents. Verily, the failure of
the deed of sale to express the true intent and agreement of the parties supports the
application of the parole evidence rule.
22

Contrary to petitioners contention, the absence of Bernabes signature in the

1978 deed of sale is not necessarily conclusive of his dissent or opposition to the
effected arrangement. As previously adverted to, the agreement had multiple causes
or consideration, apart from the P15,000.00 stated in the deed of sale. To repeat, the
agreement between the parties had both an onerous and a remunerative cause. Also
worthy of note is the moral consideration for the agreement given the relationship
between the parties.
Third. We agree with both the lower and the appellate courts that the Statute of
Frauds is not applicable to the instant case.
The general rule is that contracts are valid in whatever form they may be. One
exception thereto is the Statute of Frauds which requires a written instrument for
the enforceability of a contract. However, jurisprudence dictates that the Statute of
Frauds only applies to executory, not to completed, executed, or partially
consummated, contracts.
23

24

25

In the case at bench, we find that all requisites for a valid contract are present,
specifically: (1) consent of the parties; (2) object or subject matter, comprised of the
parties respective shares in the subject lot; and (3) the consideration, over and
above the P15,000.00 stipulated price. We note that the agreement between the
parties had long been consummated and completed. In fact, the agreement clearly
contemplated immediate execution by the parties. More importantly, the parties,
including petitioner Fe, ratified the agreement by the acceptance of benefits
thereunder.
26

One other thing militates against Fes claim of ownershipsilence and palpable
failure to object to the execution of the agreement. Fe insists that she only intended
to sell her share of the lot inherited from her mothers estate, exclusive of her
fathers share therein.

We are not persuaded by the belated claim. This afterthought is belied by the
express stipulations in the 1978 deed of sale that the heirs of Bernabe and Gregoria,
absolutely sell, quitclaim, and transfer the subject lot in favor of Beethoven.
Although a void contract is not a source of rights and obligations between the
parties, the provisions in the written agreement and their signature thereon are
equivalent to an express waiver of all their rights and interests in the entire lot in
favor of Beethoven, regardless of which part pertained to their mothers or fathers
estate.
Truly significant is the fact that in all the years that Beethoven occupied the
subject lot, Fe never disturbed the former in his possession. Neither did she present
her other siblings to buttress her contradicting claim over the subject lot. Likewise,
she never asked for a partition of the property even after the death of their father,
Bernabe, to settle his estate, or when her other siblings executed the deed of
confirmation of sale in 1986. Fe also does not pretend to share in the payment of
realty taxes thereon, but merely advances the claim that Priscillana, one of their
siblings, had already paid said taxes. Ultimately, petitioner Fe is estopped from
staking a claim on the subject lot and wresting ownership therein from Beethoven.
27

Our holding in the case of Tinsay v. Yusay is still good law, thus:
28

Juana Servando not being a party to the partition agreement Exhibit 1, the agreement
standing alone was, of course, ineffective as against her. The attempt to partition her land
among her heirs, constituting a partition of future inheritance was invalid under the second
paragraph of Article 1271 of the Civil Code and for the same reason the renunciation of all
interest in the land which now constitutes lots Nos. 241 and 713 made by the appellants in
favor of the children of Jovito Yusay would likewise be of no binding force as to the
undivided portion which belonged to Juan Servando. But if the parties entered into the
partition agreement in good faith and treated all of the land as a present inheritance, and if
the appellants on the strength of the agreement obtained their Torrens title to the land
allotted to them therein, and if Perpetua Sian in reliance on the appellants renunciation of
all interest claimed by her on behalf of her children in the cadastral case refrained from
presenting any opposition to the appellants claim to the entire fee in the land assigned to
them in the partition agreement and if the appellants after the death of Juana Servando
continued to enjoy the benefits of the agreement refusing to compensate the heirs of Jovito
Yusay for the latters loss of their interest in lots Nos. 2 and 744 through the registration of
the lots in the name of the appellants and the subsequent alienation of the same to innocent
third parties, said appellants are now estopped from repudiating the partition agreement of

1911 and from claiming any further interest in lots Nos. 241 and 713. There is, however, no
reason why they should not be allowed to share in the distribution of the other property left
by Juana Servando.

Fourth. As to the lower courts award of moral damages, we sustain respondents

entitlement thereto. Undeniably, respondents suffered besmirched reputation,
wounded feelings, and social humiliation due to the damaging placards. The injury
is aggravated because of the relationship among the parties. Respondent Beethoven
was able to prove that his nephews, petitioners Lordito, Johnston, and Arme, Jr.,
stayed with him at some point, and that he financially supported and trained them
to be electricians.
29

30

Yet, Lordito denies malice in the aforesaid act. He argues that his only quarrel
with Beethoven stems from the latters claim of ownership over the subject lot which
was, supposedly, already bequeathed to him by his grandfather, Bernabe. Lordito
maintains that his claim is valid, supported by a will Beethoven had torn up, which
allegedly negates malice in his act of putting up the placards.
We are not convinced.
To begin with, the supposed devise to Lordito appears to be void. Considering
that Bernabes estate consisted merely of his conjugal share in the subject lot, the
bequeathal infringes on his compulsory heirs legitimes, including that of Lorditos
mother, Fe. Lorditos claim, therefore, is only subordinate to Beethovens claim as a
compulsory heir, even without delving into the innominate contract between the
parties. In all, the ascription of malice and Lorditos corresponding liability for
moral damages is correct given the words he employed in the placards.
31

However, we agree with petitioners that there is a dearth of evidence pointing to

their collective responsibility for Lorditos act.
Corollary thereto, Lordito admits and claims sole responsibility for putting up
the placards. The other petitioners specific participation in the tortious act was not
proven. Failure to prevent Lordito or command him to remove the placards, alone,
does not justify the finding that all the petitioners are jointly and severally liable. It
does not suffice that all the petitioners were moved by a common desire to acquire
the subject property, absent any proof that they individually concurred in Lorditos
act.

Entrenched is the rule that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another. The exception under Section 32, Rule 130 of the
Rules of Court does not obtain in this instance. The other petitioners acquiescence
to and apparent concurrence in Lorditos act cannot be inferred merely from their
failure to remove the placards or reprimand Lordito. While the placards indeed
defamed Beethoven, there is nothing that directly links the other petitioners to this
dastardly act.
32

WHEREFORE, premises considered, the petition is PARTIALLY GRANTED. The

August 28, 2001 Decision of the Court of Appeals is hereby MODIFIED. Petitioner
Lordito Arrogante is held solely liable to respondents for moral damages in the
amount of P150,000.00. The quieting of title in favor of respondents is hereby
AFFIRMED. No costs.
SO ORDERED.
Ynares-Santiago (Chairperson), Austria-Martinezand Chico-Nazario,

JJ.,

concur.
Petition partially granted, judgment modified.
Note.The settlement of the issue of ownership is the first stage in an action for
partition. (Ocampo vs. Ocampo,427 SCRA 545 [2004])
o0o
G.R. No. 114151. September 17, 1998.

MAURICIA ALEJANDRINO, petitioner, vs. THE HONORABLE COURT OF

APPEALS, HON. BENIGNO G. GAVIOLA, RTC-9, CEBU CITY, and LICERIO P.
NIQUE, respondents.
Ownership; Co-Ownership; Partition; Succession; Where there are two or more heirs, the
whole estate of the decedent is, before partition, owned in common by such heirs, subject to
the payment of the debts of the deceased, and each co-owner exercises his rights over the
whole property and may use and enjoy the same with no other limitation than that he shall
not injure the interests of his co-owners.Article 1078 of the Civil Code provides that where
there are two or more heirs, the whole estate of the decedent is, before partition, owned in
common by such heirs, subject to the payment of the debts of the deceased. Under a co-

ownership, the ownership of an undivided thing or right belongs to different persons. Each
co-owner of property which is held pro indiviso exercises his rights over the whole property
and may use and enjoy the same with no other limitation than that he shall not injure the
interests of his co-owners. The underlying rationale is that until a division is made, the
respective share of each cannot be determined and every co-owner exercises, together with
his co-participants, joint ownership over the pro indiviso property, in addition to his use and
enjoyment of the same.
Same; Same; Same; Same; Partition of the estate of a decedent may only be effected by
(1) the heirs themselves extrajudicially, (2) by the court in an ordinary action for partition, or
in the course of administration proceedings, (3) by the testator himself, and (4) by the third
person designated by the testator.The legality of Laurencias alienation of portions of the
estate of the Alejandrino spouses was settled in Civil Case No. CEB-7038. The decision in
that case had become final and executory with Laurencias withdrawal of her appeal. When
private respondent filed a motion for the segregation of the portions of the property that
were adjudged in his favor, private respondent was in effect calling for the partition of the
property. However, under the law, partition of the estate of a decedent may only be effected
by (1) the heirs themselves extrajudicially, (2) by the court in an ordinary action for
partition, or in the course of administration proceedings, (3) by the testator himself, and (4)
by the third person designated by the testator.
Same; Same; Same; Same; Actions; Quieting of Title;Partition of an estate may not be
ordered in an action for quieting of title.The trial court may not, therefore, order partition
of an estate in an action for quieting of title. As there is no pending administration
proceedings, the property of the Alejandrino spouses can only be partitioned by the heirs
themselves in an extrajudicial settlement of estate. However, evidence on the extrajudicial
settlement of estate was offered before the trial court and it became the basis for the order
for segregation of the property sold to private respondent. Petitioner Mauricia does not deny
the fact of the execution of the deed of extrajudicial settlement of the estate. She only
questions its validity on account of the absence of notarization of the document and the nonpublication thereof.
Same; Same; Same; Same; Notarization; Extrajudicial Settlements; Notarization of a
deed of extrajudicial settlement has the effect of making it a public document that can bind
third parties; By the provision of Art. 1082 of the Civil Code, it appears that when a co-owner
sells his inchoate right in the co-ownership, he expresses his intention to put an end to
indivision among (his) co-heirs.Notarization of the deed of extrajudicial settlement has
the effect of making it a public document that can bind third parties. However, this formal
requirement appears to be superseded by the substantive provision of the Civil Code that
states: ART. 1082. Every act which is intended to put an end to indivision among co-heirs

and legatees or devisees is deemed to be a partition, although it should purport to be a sale,

an exchange, a compromise, or any other transaction. By this provision, it appears that
when a co-owner sells his inchoate right in the co-ownership, he expresses his intention to
put an end to indivision among (his) co-heirs. Partition among co-owners may thus be
evidenced by the overt act of a co-owner of renouncing his right over the property regardless
of the form it takes. In effect, Laurencia expressed her intention to terminate the coownership by selling her share to private respondent.
Same; Same; Same; Same; Same; Same; The partition of inherited property need not be
embodied in a public document.The execution of the deed of extrajudicial settlement of
the estate reflected the intention of both Laurencia and petitioner Mauricia to physically
divide the property. Both of them had acquired the shares of their brothers and therefore it
was only the two of them that needed to settle the estate. The fact that the document was
not notarized is no hindrance to its effectivity as regards the two of them. The partition of
inherited property need not be embodied in a public document. In this regard, Tolentino
subscribes to that opinion when he states as follows: x x x. We believe, however, that the
public instrument is not essential to the validity of the partition. This is not one of those
contracts in which form is of the essence. The public instrument is necessary only for the
registration of the contract, but not for its validity.
Same; Same; Same; Same; Same; Same; The fact that a deed of extrajudicial settlement
was not notarized is immaterial where the heir questioning it admits having executed it.
The deed of extrajudicial settlement executed by Mauricia and Laurencia evidence their
intention to partition the property. It delineates what portion of the property belongs to
each other. That it was not notarized is immaterial in view of Mauricias admission that she
did execute the deed of extrajudicial settlement. Neither is the fact that the trial court only
mentioned the existence of such document in its decision in Civil Case No. CEB-7028. That
document was formally offered in evidence and the court is deemed to have duly considered
it in deciding the case. The court has in its favor the presumption of regularity of the
performance of its task that has not been rebutted by petitioner Mauricia.
Same; Same; Same; Same; Same; Same; Where two co-heirs acquired the shares of their
co-heirs, only the two need to participate in the extrajudicial settlement of estate. Neither
may the fact that the other heirs of the Alejandrino spouses, named Marcelino, Gregorio,
Ciriaco and Abundio did not participate in the extrajudicial settlement of estate affect its
validity. In her amended complaint in Civil Case No. CEB-11673, petitioner Mauricia
herself admitted having acquired by purchase the rights over the shares of her brothers.
Courts; Judgments; A court may issue an order clarifying its decision that had become
final and executory in order that the execution thereof will not be rendered futile.The trial

court, therefore, did not abuse its discretion in issuing the order for the segregation of the
property. In so doing, it was merely reiterating the partition of the property by petitioner
Mauricia and her sister Laurencia that was embodied in the deed of extrajudicial
settlement of estate. The order may likewise be deemed as a clarification of its decision that
had become final and executory. Such clarification was needed lest proper execution of the
decision be rendered futile.
Same; Same; Forum Shopping; Pleadings and Practice; Res Judicata; Elements; Forum
shopping exists where the elements of litis pendentia are present or where a final judgment
in one case will amount to res judicata in the other.The Court finds no merit in the issue of
forum shopping raised by private respondent. Forum shopping exists where the elements
of litis pendentia are present or where a final judgment in one case will amount to res
judicata in the other. Because the judgment in Civil Case No. CEB-7028 is already final and
executory, the existence of res judicata is determinative of whether or not petitioner is
guilty of forum shopping. For the principle of res judicata to apply, the following must be
present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision
is final; and (4) the two actions involve identical parties, subject matter and causes of
action. The fourth element is not present in this case. The parties are not identical because
petitioner was not impleaded in Civil Case No. CEB-7028. While the subject matter may be
the same property of the Alejandrino spouses, the causes of action are different. Civil Case
No. CEB-7028 is an action for quieting of title and damages while Civil Case No. CEB11673 is for redemption and recovery of properties.
Same; Same; Same; Same; Attorneys; A charge of forum shopping may not be anchored
simply on the fact that the counsel for different plaintiffs in two cases is one and the same.
It appears moreover, that private respondents argument on forum shopping is anchored on
the fact that counsel for both plaintiffs in those two cases is one and the same, thereby
implying that the same counsel merely wanted to prevail in the second case after having
failed to do so in the first. The records show, however, that Laurencia executed an affidavit
consenting to the appearance of her counsel in any case that petitioner Mauricia might file
against private respondent. She affirmed in that affidavit that she could be included even as
a defendant in any case that petitioner Mauricia would file because she fully agree(d) with
whatever cause of action Mauricia would have against private respondent. Such a
statement can hardly constitute a proper basis for a finding of forum shopping, much less
evidence of misconduct on the part of counsel. As noted earlier, the two cases have different
causes of action and the two plaintiffs who would have conflicting claims under the facts of
the case actually presented a united stand against private respondent. If there is any
charge that could be leveled against counsel, it is his lack of thoroughness in pursuing the
action for quieting of title. As counsel for plaintiff therein, he could have impleaded
petitioner Mauricia knowing fully well her interest in the property involved in order to avoid

multiplicity of suits. However, such an omission is not a sufficient ground for administrative
sanction.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Sitoy, Go & Associates for petitioner.
Reuben B. Baldoza for private respondent.
ROMERO, J.:
Questioned in this petition for review on certiorari is the Decision of the Court of
Appeals which ruled that the trial court, in an action for quieting of title, did not act
in excess of jurisdiction when it issued an order for the segregation of property, after
the finality of its decision.
1

The facts show that the late spouses Jacinto Alejandrino and Enrica Labunos left
their six children named Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia and
Abundio a 219-square-meter lot in Mambaling, Cebu City identified as Lot No. 2798
and covered by Transfer Certificate of Title No. 19658. Upon the demise of the
Alejandrino spouses, the property should have been divided among their children
with each child having a share of 36.50 square meters. However, the estate of the
Alejandrino spouses was not settled in accordance with the procedure outlined in
the Rules of Court.
Petitioner Mauricia (one of the children) allegedly purchased 12.17 square meters
of Gregorios share, 36.50 square meters of Ciriacos share and 12.17 square meters
of Abundios share thereby giving her a total area of 97.43 square meters, including
her own share of 36.50 square me-ters. It turned out, however, that a third party
named Licerio Nique, the private respondent in this case, also purchased portions of
the property, to wit: 36.50 square meters from Laurencia, 36.50 square meters from
Gregorio through Laurencia, 12.17 square meters from Abundio also through
Laurencia and 36.50 square meters from Marcelino or a total area of 121.67 square
meters of the Alejandrino property.
2

However, Laurencia (the alleged seller of most of the 121.67 square meters of the
property) later questioned the sale in an action for quieting of title and damages
against private respondent Nique. It was docketed as Civil Case No. CEB-7038 in
the Regional Trial Court of Cebu City, Branch 9, presided by Judge Benigno G.
Gaviola. In due course, the lower court rendered a decision on November 27, 1990
disposing of the case as follows:
WHEREFORE, the Court hereby renders judgment in favor of defendant and against
plaintiff, dismissing the complaint filed by plaintiff against defendant, and on the
Counterclaim and prayer of defendant in its Answer, the Court hereby declares defendant
as the owner in fee simple of the share of plaintiff Laurencia Alejandrino and the shares of
Marcelino, Gregorio and Abundio, all surnamed Alejandrino, of the parcel of land known as
Lot No. 2798 and covered by Transfer Certificate of Title No. 19658 which 4 shares totals an
area of 146 square meters more or less; and the Court further Orders plaintiff to:
1. 1.Vacate the premises subject of the complaint and surrender the property to
defendant to the extent of the 4 shares aforementioned;
2. 2.Pay the defendant the amount of P15,000.00 as litigation and necessary expenses;
the sum of P10,000.00 as reimbursement for attorneys fees; the sum of P10,000.00
as moral damages and P10,000.00 as exemplary damages;
3. 3.Plus costs.
SO ORDERED.

Laurencia appealed the decision to the Court of Appeals under CA-G.R. CV No.
33433 but later withdrew the same. On April 13, 1992, the Court of Appeals
considered the appeal withdrawn in accordance with Rule 50 of the Rules of Court.
4

Meanwhile, herein petitioner Mauricia Alejandrino filed on May 5, 1992 before

the Regional Trial Court of Cebu City, Branch VII, a complaint for redemption and
recovery of properties with damages against private respondent Nique that was
docketed as Civil Case No. CEB-11673. Adelino B. Sitoy, Laurencias counsel in Civil
Case No. CEB-7038, filed Civil Case No. CEB-11673 for petitioner Mauricia.
The amended complaint in the latter case dated May 17, 1992 alleged that
private respondent Nique never notified petitioner Mauricia of the purchase of
121.67 square meters of the undivided Lot No. 2798 nor did he give petitioner

Mauricia the preemptive right to buy the area as a co-owner of the same lot. As such
co-owner, petitioner Mauricia manifested her willingness to deposit with the court
the amount of P29,777.78, the acquisition cost of the portion purchased by private
respondent Nique. Petitioner Mauricia also alleged that she demanded from private
respondent the area of around 24.34 square meters that the latter had unduly,
baselessly and maliciously claimed as his own but which, as part of Lot No. 2798,
actually belongs to her. The amended complaint prayed that petitioner Mauricia be
allowed to redeem the area of 121.67 square meters under the redemption price of
P29,777.78 and that private respondent Nique be ordered to execute the necessary
documents for the redemption and the eventual transfer of certificate of title to her.
The amended complaint further prayed for the return to petitioner Mauricia of the
24.34-square-meter portion of the lot and for damages amounting to P115,000 and
attorneys fees of P30,000.
On August 2, 1993, the lower court granted the motion to admit the amended
complaint and forthwith ordered the defendant therein to file an amended answer.
In Civil Case No. CEB-7038 in the meantime, private respondent filed a motion
for the segregation of the 146-square-meter portion of the property that had been
declared by the trial court as his own by virtue of purchase. On May 6, 1993, the
trial court issued an order the pertinent portions of which read as follows:
O R D E R
For resolution is a Motion to Order Segregation of 146 Square Meters In Lot No. 2798
dated January 15, 1993 filed by defendant and the Opposition thereto dated February 2,
1992 by plaintiff.
Movant-defendant also filed a rejoinder dated February 15, 1993 to the Opposition.
After going over the allegations in the motion, the opposition thereto and the rejoinder
as well as the records of the case, particularly the decision rendered by this Court and the
Order dated October 28, 1992, denying the motion for reconsideration filed by plaintiffs and
allowing the issuance of a writ of execution, the Court is inclined to Grant the instant
motion.
xxx

xxx

xxx

xxx

In addition thereto, the Court makes the following observation:

1. 1.Plaintiff (oppositor) has a total share of 146 square meters. This is admitted by her
in her complaint (par. 4 thereof). In the decision rendered by this Court, this share
now belongs to defendant movant by way of sale. The decision of this Court has long
become final.
2. 2.The total area of the land is 219 sq. meters (par. 2 of complaint), thus, the share of
Mauricia Alejandrino is only 73 square meters.
3. 3.As early as June 10, 1983, Mauricia Alejandrino and Laurencia Alejandrino had
entered into an Extrajudicial Settlement of Estate whereby they agreed to divide
the land subject of this case with Laurencia Alejandrino owning 146 square
meters in the frontage and Mauricia Alejandrino owning 75 square meters in the
back portion (Exh. 16, Extrajudicial Settlement of Estate, par. 1) (italics supplied),
and that the parties assure each other and their successor in interest that a right of
way of two meters is granted to each party by the other permanently (Exh. 16, par.
2). This partition is signed by the parties and their witnesses. Although not
notarized, it is certainly valid as between the parties, Maurecia (sic) Alejandrino,
being an immediate party, may not renege on this.
4. 4.Since the share of defendant Licerio P. Nique is specifically known to be 146 square
meters, and that its location shall be on the frontage of the property while the 73
square meters of Maurecia (sic) Alejandrino shall be at the back portion, then, the
Court cannot see its way clear, why the 146 sq. meters share of defendant may not
be segregated.
5. 5.The contention by oppositor that the segregation of defendants share of 146 sq.
meters from Lot No. 2798 was not decreed in the judgment is a rather narrow way
of looking at the judgment. Paragraph 1 of the dispositive portion of the judgment
by this Court, Orders plaintiff to vacate the premises subject of the complaint and
surrender the property to defendant to the extent of the 4 shares aforementioned.
The 4 shares of Laurencia Alejandrino of 146 sq. meters can be segregated because
Laurencia and Maurecia had already executed an extrajudicial partition indicating
where their respective shares shall be located (Exh. 16). To deny the segregation is
to make the decision of this Court just about valueless is not altogether useless.
The matter of allowing the segregation should be read into the decision.
The bottomline is still that plaintiff Laurencia, despite the fact that the decision of this
Court had long become final; and despite the fact that she even withdraw (sic) her appeal,
she still is enjoying the fruits of the property to the exclusion of the rightful owner.

WHEREFORE, the Court hereby Grants the motion. The defendant Licerio Nique may
proceed to segregate his 2146 (sic) sq. meters from Lot No. 2798 covered by TCT No. 19658,
by having the same surveyed by a competent Geodetic Engineer, at the expense of movantdefendant.
SO ORDERED.

Petitioner Mauricia questioned this order of the lower court in a petition for
certiorari and prohibition with prayer for the issuance of a writ of preliminary
injunction filed before the Court of Appeals. In due course, the Court of Appeals
dismissed the petition in a Decision promulgated on August 25, 1993.
The Court of Appeals stated that, in issuing the questioned order of May 6, 1993,
the respondent court was merely performing its job of seeing to it that execution of
a final judgment must conform to that decreed in the dispositive part of the
decision. It ratiocinated thus:
x x x. In ordering the segregation of the 146 square meters, respondent Judge correctly
referred to the text of the decision to ascertain which portion of the land covered by TCT No.
19658 was actually sold by Laurencia Alejandrino (sister of herein petitioner Mauricia) to
private respondent Nique. The respondent Judge did not err in relying upon Exhibit 16,
the Deed of Extrajudicial Settlement, dated June 10, 1983, mentioned in page 3 of the
Decision. Pertinent portion of Exhibit 16 reads:
NOW, THEREFORE, the above-named parties-heirs hereby stipulates (sic), declare and agree as
follows:
1. 1.That the parties have agreed to divide the parcel of land with Laurencia Alejandrino
owning 146 square meters in the frontageand Mauricia Alejandrino 73 square meters in the
back portions;
2. 2.That the parties mutually and reciprocally assure each other and their successor of
interest (sic) that a right of way of two meters is granted to each party to the other permanently. (italics supplied, Annex 1, Comment, p. 65, Rollo)

duly signed by herein petitioner and witnessed by private respondent Nique. It readily
reveals that when Laurencia subsequently sold her shares to herein private respondent, per
the Deed of Absolute Sale dated October 29, 1986 (Exhs. B and 10), the parties must have
referred to the 146 square meters in the frontage described in said document, Exhibit 16.
Laurencia had no authority to sell more, or, less, than that agreed upon in the extrajudicial
settlement between her and herein petitioner Mauricia. Insofar as the latter is concerned,

she is estopped from claiming that said extrajudicial settlement was a fatally defective
instrument because it was not notarized nor published. What is important is that private
respondent personally knew about Laurencia and Mauricias agreement because he was a
witness to said agreement and he relied upon it when he purchased the 146 square meters
from Laurencia.
It cannot be validly claimed by petitioner that she was deprived of her property without
due process of law considering that private respondent is merely segregating the portion of
the land actually sold to him by Laurencia Alejandrino and it does not affect the 73 square
meters that properly pertain to petitioner.
Moreover, the Supreme Court has ruled that where there is ambiguity caused by an
omission or mistake in the dispositive portion of a decision the court may clarify such
ambiguity by an amendment even after the judgment had become final, and for this
purpose it may resort to the pleadings filed by the parties, the courts finding of facts and
conclusions of law as expressed in the body of the decision (Republic Surety and Insurance
Co., Inc., et al. versus Intermediate Appellate Court, et al., 152 SCRA 309). The assailed
order, in effect, clarifies the exact location of the 146 square meters pursuant to Exhibit 16.
Respondent court did not act in excess of its jurisdiction. Hence, writs of certiorari and
prohibition do not lie in this case.
7

Petitioner Mauricia filed a motion for the reconsideration of the Court of Appeals
decision. However, on February 15, 1994, the Court of Appeals denied the same for
lack of merit there being no new ground or compelling reason that justifies a
reconsideration of its Decision.
8

In the instant petition for review on certiorari, petitioner assails the decision of
the Court of Appeals, contending that the lower court acted beyond its jurisdiction
in ordering the segregation of the property bought by private respondent as the
same was not decreed in its judgment, which had long become final and executory.
Petitioner argues that partition of the property cannot be effected because private
respondent is also a defendant in Civil Case No. CEB-11673. She asserts that
Exhibit 16, the extrajudicial settlement of estate referred to in the questioned order
of the lower court, was not discussed in the decision of the lower court and even if it
were, she could not be bound thereby considering that she was not a party litigant
in Civil Case No. CEB-7038. She questions the validity of the deed of extrajudicial
settlement because it was not notarized or published.

In his comment on the petition, private respondent alleges that although

petitioner was not a party litigant inCivil Case No. CEB-7038, she is estopped from
questioning the decision in that case and filing the instant petition because she had
knowledge of the existence of said case where res judicata had set in. He adds that
the instant petition was filed in violation of Circular No. 28-91 on forum shopping
in that the Petitioner in the instant petition whose counsel is also the counsel of
plaintiff-appellant Laurencia Alejandrino in CA-G.R. CV No. x x x, had filed a civil
actionCivil Case No. CEB-11673 x x x for REDEMPTION & RECOVERY OF
PROPERTIES WITH DAMAGES, which is presently pending before Branch 7 of the
Regional Trial Court of Cebu City. He asserts that the lower court did not exceed
its jurisdiction and/or commit grave abuse of discretion in granting his motion for
segregation of the 146 square meters of the land involved that rightfully belonged to
him in accordance with the decision of the lower court. He charges counsel for
petitioner with exhibiting unethical conduct and practice in appearing as counsel
for petitioner in Civil Case No. CEB-11673 after he had appeared for complainant
Laurencia in CA-G.R. CV No. 33433 or Civil Case No. CEB-7038. Under the
circumstances of this case, the ultimate issue that needs determination is whether
or not as an heir of the Alejandrino property, Laurencia may validly sell specific
portions thereof to a third party.
Article 1078 of the Civil Code provides that where there are two or more heirs,
the whole estate of the decedent is,before partition, owned in common by such heirs,
subject to the payment of the debts of the deceased. Under a co-ownership, the
ownership of an undivided thing or right belongs to different persons. Each coowner of property which is held pro indiviso exercises his rights over the whole
property and may use and enjoy the same with no other limitation than that he
shall not injure the interests of his co-owners. The underlying rationale is that until
a division is made, the respective share of each cannot be determined and every coowner exercises, together with his co-participants, joint ownership over the pro
indiviso property, in addition to his use and enjoyment of the same.
9

10

Although the right of an heir over the property of the decedent is inchoate as long as
the estate has not been fully settled and partitioned, the law allows a co-owner to
exercise rights of ownership over such inchoate right. Thus, the Civil Code provides:
11

ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even

substitute another person in its enjoyment, except when personal rights are involved. But
the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited
to the portion which may be allotted to him in the division upon the termination of the coownership.

With respect to properties shared in common by virtue of inheritance, alienation of

a pro indiviso portion thereof is specifically governed by Article 1088 that provides:
ART. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor.

In the instant case, Laurencia was within her hereditary rights in selling her pro
indiviso share in Lot No. 2798. However, because the property had not yet been
partitioned in accordance with the Rules of Court, no particular portion of the
property could be identified as yet and delineated as the object of the sale. Thus,
interpreting Article 493 of the Civil Code providing that an alienation of a co-owned
property shall be limited to the portion which may be allotted to (the seller) in the
division upon the termination of the co-ownership, the Court said:
x x x (p)ursuant to this law, a co-owner has the right to alienate his pro-indiviso share in
the co-owned property even without the consent of the other co-owners. Nevertheless, as a
mere part owner, he cannot alienate the shares of the other co-owners. The prohibition is
premised on the elementary rule that no one can give what he does not have ( Nemo dat
quod non habet). Thus, we held in BailonCasilao vs. Court of Appeals (G.R. No. 78178, April
15, 1988, 160 SCRA 738, 745), viz.:
x x x since a co-owner is entitled to sell his undivided share, a sale of the entire property by one coowner without the consent of the other co-owners is not null and void. However, only the rights of the
co-owner-seller are transferred, thereby making the buyer a co-owner of the property.
The proper action in cases like this is not for the nullification of the sale or for the recovery of
possession of the thing owned in common from the third person who substituted the co-owner or coowners who alienated their shares, but the DIVISION of the common property of the co-owners who
possessed and administered it.
12

The legality of Laurencias alienation of portions of the estate of the Alejandrino

spouses was settled in Civil Case No. CEB-7038. The decision in that case had
become final and executory with Laurencias withdrawal of her appeal. When

private respondent filed a motion for the segregation of the portions of the property
that were adjudged in his favor, private respondent was in effect calling for
thepartition of the property. However, under the law, partition of the estate of a
decedent may only be effected by (1) the heirs themselves extrajudicially, (2) by the
court in an ordinary action for partition, or in the course of administration
proceedings, (3) by the testator himself, and (4) by the third person designated by
the testator.
13

The trial court may not, therefore, order partition of an estate in an action for
quieting of title. As there is no pending administration proceedings, the property of
the Alejandrino spouses can only be partitioned by the heirs themselves in an
extrajudicial settlement of estate. However, evidence on the extrajudicial settlement
of estate was offered before the trial court and it became the basis for the order for
segregation of the property sold to private respondent. Petitioner Mauricia does not
deny the fact of the execution of the deed of extrajudicial settlement of the estate.
She only questions its validity on account of the absence of notarization of the
document and the non-publication thereof.
On extrajudicial settlement of estate, Section 1 of Rule 74 of the Rules of Court
provides:
If the decedent left no will and no debts and the heirs are all of age, or the minors are
represented by their judicial or legal representatives duly authorized for the purpose, the
parties may, without securing letters of administration, divide the estate among themselves
as they see fit by means of a public instrument filed in the office of the register of deeds, and
should they disagree, they may do so in an ordinary action for partition. x x x.
The fact of the extrajudicial settlement or administration shall be published in a
newspaper of general circulation in the manner provided in the next succeeding section; but
no extrajudicial settlement shall be binding upon any person who has not participated
therein or had no notice thereof.

Notarization of the deed of extrajudicial settlement has the effect of making it a

public document that can bind third parties. However, this formal requirement
appears to be superseded by the substantive provision of the Civil Code that states:
14

ART. 1082. Every act which is intended to put an end to in-division among co-heirs and
legatees or devisees is deemed to be a partition, although it should purport to be a sale, an
exchange, a compromise, or any other transaction.

By this provision, it appears that when a co-owner sells his inchoate right in the coownership, he expresses his intention to put an end to indivision among (his) coheirs. Partition among co-owners may thus be evidenced by the overt act of a coowner of renouncing his right over the property regardless of the form it takes. In
effect, Laurencia expressed her intention to terminate the co-ownership by selling
her share to private respondent.
Moreover, the execution of the deed of extrajudicial settlement of the estate
reflected the intention of both Laurencia and petitioner Mauricia to physically
divide the property. Both of them had acquired the shares of their brothers and
therefore it was only the two of them that needed to settle the estate. The fact that
the document was not notarized is no hindrance to its effectivity as regards the two
of them. The partition of inherited property need not be embodied in a public
document. In this regard, Tolentino subscribes to that opinion when he states as
follows:
x x x. We believe, however, that the public instrument is not essential to the validity of the
partition. This is not one of those contracts in which form is of the essence. The public
instrument is necessary only for the registration of the contract, but not for its validity. The
validity of an oral contract among the heirs, terminating the co-ownership, has been
recognized by the Supreme Court in a decision x x x (where) that tribunal said: An
agreement among the heirs that a certain lot should be sold and its proceeds paid to one of
them is a valid oral contract, and the same has the force of law between the parties from
and after the original assent thereto, and no one of them may withdraw or oppose its
execution without the consent of all.
In a still later case, the Supreme Court held that partition among heirs or renunciation
of an inheritance by some of them is not exactly a conveyance for the reason that it does not
involve transfer of property from one to the other, but rather a confirmation or ratification of
title or right to property by the heir renouncing in favor of another heir accepting and
receiving the inheritance.
Hence, the court concluded, it is competent for the heirs of an estate to enter into an oral
agreement for distribution of the estate among themselves.
15

The deed of extrajudicial settlement executed by Mauricia and Laurencia evidence

their intention to partition the property. It delineates what portion of the property
belongs to each other. That it was not notarized is immaterial in view of Mauricias
admission that she did execute the deed of extrajudicial settlement. Neither is the

fact that the trial court only mentioned the existence of such document in its
decision in Civil Case No. CEB-7028. That document was formally offered in
evidence and the court is deemed to have duly considered it in deciding the case.
The court has in its favor the presumption of regularity of the performance of its
task that has not been rebutted by petitioner Mauricia. Neither may the fact that
the other heirs of the Alejandrino spouses, named Marcelino, Gregorio, Ciriaco and
Abundio did not participate in the extrajudicial settlement of estate affect its
validity. In her amended complaint in Civil Case No. CEB-11673, petitioner
Mauricia herself admitted having acquired by purchase the rights over the shares of
her brothers.
16

On the part of Laurencia, the court found that she had transmitted her rights
over portions she had acquired from her brothers to private respondent Nique. The
sale was made after the execution of the deed of extrajudicial settlement of the
estate that private respondent himself witnessed. The extrajudicial settlement of
estate having constituted a partition of the property, Laurencia validly transferred
ownership over the specific front portion of the property with an area of 146 square
meters.
The trial court, therefore, did not abuse its discretion in issuing the order for the segregation of
the property. In so doing, it was merely reiterating the partition of the property by petitioner
Mauricia and her sister Laurencia that was embodied in the deed of extrajudicial settlement of
estate. The order may likewise be deemed as a clarification of its decision that had become final and
executory. Such clarification was needed lest proper execution of the decision be rendered futile.
The Court finds no merit in the issue of forum shopping raised by private respondent. Forum
shopping exists where the elements of litis pendentia are present or where a final judgment in one
case will amount to res judicata in the other. Because the judgment in Civil Case No. CEB-7028is
17

already final and executory, the existence of res judicatais determinative of whether or not petitioner
is guilty of forum shopping. For the principle of res judicata to apply, the following must be present:
(1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4)
the two actions involve identical parties, subject matter and causes of action. The fourth element is
18

not present in this case. The parties are not identical because petitioner was not impleaded in Civil
Case No. CEB-7028. While the subject matter may be the same property of the Alejandrino spouses,
the causes of action are different. Civil Case No. CEB-7028 is an action for quieting of title and
damages while Civil Case No. CEB-11673 is for redemption and recovery of properties.

It appears moreover, that private respondents argument on forum shopping is anchored on the
fact that counsel for both plaintiffs in those two cases is one and the same, thereby implying that the
same counsel merely wanted to prevail in the second case after having failed to do so in the first. The
records show, however, that Laurencia executed an affidavit consenting to the appearance of her
19

counsel in any case that petitioner Mauricia might file against private respondent. She affirmed in
that affidavit that she could be included even as a defendant in any case that petitioner Mauricia
would file because she fully agree(d) with whatever cause of action Mauricia would have against
private respondent. Such a statement can hardly constitute a proper basis for a finding of forum
shopping, much less evidence of misconduct on the part of counsel. As noted earlier, the two cases
have different causes of action and the two plaintiffs who would have conflicting claims under the
facts of the case actually presented a united stand against private respondent. If there is any charge
that could be leveled against counsel, it is his lack of thoroughness in pursuing the action for quieting
of title. As counsel for plaintiff therein, he could have impleaded petitioner Mauricia knowing fully
well her interest in the property involved in order to avoid multiplicity of suits. However, such an
omission is not a sufficient ground for administrative sanction.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.
Narvasa (C.J., Chairman), Kapunan and Purisima, JJ., concur.
Petition denied.
Notes.A partys claim that his property is different from that of another is antithetical to his
filing of a complaint for quieting of title as there would not be any basis for claiming that the latter
cast a cloud of doubt to his title over his parcel of land. (Heirs of Juan Oclarit vs. Court of
Appeals, 233 SCRA 239 [1994])
The pendency of an action for quieting of title before the Regional Trial Court does not divest the
city or municipal trial court of its jurisdiction to proceed with the ejectment case over the same
property. (Oblea vs. Court of Appeals,244 SCRA 101 [1995]) When there has been a partial partition,
as where the transferees of an undivided portion of the land allowed a coowner of the property to
occupy a definite portion thereof and had not disturbed the same, for a period too long to be ignored,
the possessor is in a better condition or right. (Vda. de Cabrera vs. Court of Appeals, 267 SCRA
339[1997])

G.R. No. 112260. June 30, 1997.

JOVITA YAP ANCOG, and GREGORIO YAP, JR., petitioners, vs. COURT OF
APPEALS, ROSARIO DIEZ, and CARIDAD YAP, respondents.
Civil Law; Property; Co-ownership; Every act which is intended to put an end to
indivision among co-heirs is deemed to be a partition even though it should purport to be a
sale, an exchange, or any other transaction.Thus, what the record of this case reveals is
the intention of Jovita Ancog and Caridad Yap to cede their interest in the land to their
mother Rosario Diez. It is immaterial that they had been initially motivated by a desire to
acquire a loan. Under Art. 1082 of the Civil Code, every act which is intended to put an end
to indivision among co-heirs is deemed to be a partition even though it should purport to be
a sale, an exchange, or any other transaction.
Same; Same; Same; Laches; Court of Appeals erred in ruling that the claim of petitioner
Gregorio Yap, Jr. was barred by laches.We hold, however, that the Court of Appeals erred
in ruling that the claim of petitioner Gregorio Yap, Jr. was barred by laches. In accordance
with Rule 74, 1 of the Rules of Court, as he did not take part in the partition, he is not
bound by the settlement. It is uncontroverted that, at the time the extrajudicial settlement
was executed, Gregorio Yap, Jr. was a minor. For this reason, he was not included or even
informed of the partition.
Same; Same; Same; Trust; As a general rule, a resulting trust arises where such may be
reasonably presumed to be the intention of the parties, as determined from the facts and
circumstances existing at the time of the transaction out of which it is sought to be
established.In the case of OLaco v. Co Cho Chit, Art. 1451 was held as creating a
resulting trust, which is founded on the presumed intention of the parties. As a general
rule, it arises where such may be reasonably presumed to be the intention of the parties, as
determined from the facts and circumstances existing at the time of the transaction out of
which it is sought to be established. In this case, the records disclose that the intention of
the parties to the extrajudicial settlement was to establish a trust in favor of petitioner Yap,
Jr. to the extent of his share. Rosario Diez testified that she did not claim the entire
property, while Atty. de la Serna added that the partition only involved the shares of the
three participants.
Same; Same; Same; Same; Prescription; For prescription to run in favor of the trustee,
the trust must be repudiated by unequivocal acts made known to the cestui que trust and
proved by clear and conclusive evidence.A cestui que trust may make a claim under a
resulting trust within 10 years from the time the trust is repudiated. Although the
registration of the land in private respondent Diezs name operated as a constructive notice
of her claim of ownership, it cannot be taken as an act of repudiation adverse to petitioner
Gregorio Yap, Jr.s claim, whose share in the property was precisely not included by the

parties in the partition. Indeed, it has not been shown whether he had been informed of her
exclusive claim over the entire property before 1985 when he was notified by petitioner
Jovita Yap Ancog of their mothers plan to sell the property.
Same; Same; Same; Same; Same; A cestui que trust may make a claim under a
resulting trust within 10 years from the time the trust is repudiated.This Court has ruled
that for prescription to run in favor of the trustee, the trust must be repudiated by
unequivocal acts made known to the cestui que trust and proved by clear and conclusive
evidence. Furthermore, the rule that the prescriptive period should be counted from the
date of issuance of the Torrens certificate of title applies only to the remedy of reconveyance
under the Property Registration Decree. Since the action brought by petitioner Yap to claim
his share was brought shortly after he was informed by Jovita Ancog of their mothers effort
to sell the property, Gregorio Yap, Jr.s claim cannot be considered barred either by
prescription or by laches.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Artemio P. Cabatos for petitioners.
Vicente de la Serna, Jr. for private respondents.
MENDOZA, J.:
This is a petition for review of the decision of the Court of Appeals in CA-G.R. No.
CV-19650, affirming the dismissal by the Regional Trial Court of Bohol of an action
for partition of a parcel of land which petitioners had filed.
1

The land, with improvements thereon, was formerly the conjugal property of the
spouses Gregorio Yap and Rosario Diez. In 1946, Gregorio Yap died, leaving his
wife, private respondent Rosario Diez, and children, petitioners Jovita Yap Ancog
and Gregorio Yap, Jr., and private respondent Caridad Yap as his heirs.
In 1954 and again 1958, Rosario Diez obtained loans from the Bank of Calape,
secured by a mortgage on the disputed land, which was annotated on its Original
Certificate of Title No. 622. When Rosario Diez applied again for a loan to the bank,
offering the land in question as security, the banks lawyer, Atty. Narciso de la
Serna, suggested that she submit an extrajudicial settlement covering the disputed

land as a means of facilitating the approval of her application. The suggestion was
accepted and on April 4, 1961, Atty. de la Serna prepared an extrajudicial
settlement, which the heirs, with the exception of petitioner Gregorio Yap, Jr., then
only 15 years old, signed. The document was notarized by Atty. de la Serna on April
12, 1961. As a result, OCT No. 622 was cancelled and Transfer Certificate of Title
No. 3447 (T-2411) was issued on April 13, 1961. On April 14, 1961, upon the
execution of a real estate mortgage on the land, the loan was approved by the bank.
Rosario Diez exercised rights of ownership over the land. In 1985, she brought an
ejectment suit against petitioner Jovita Yap Ancogs husband and son to evict them
from the ground floor of the house built on the land for failure to pay rent.
Shortly thereafter, petitioner Jovita Ancog learned that private respondent Rosario
Diez had offered the land for sale.
Petitioner Ancog immediately informed her younger brother, petitioner Gregorio
Yap, Jr., who was living in Davao, of their mothers plan to sell the land. On June 6,
1985, they filed this action for partition in the Regional Trial Court of Bohol where
it was docketed as Civil Case No. 3094. As private respondent Caridad Yap was
unwilling to join in the action against their mother, Caridad was impleaded as a
defendant.
Petitioners alleged that the extrajudicial instrument was simulated and therefore
void. They claimed that in signing the instrument they did not really intend to
convey their interests in the property to their mother, but only to enable her to
obtain a loan on the security of the land to cover expenses for Caridads school fees
and for household repairs.
At the pre-trial conference, the parties stipulated:
1. 1.That the parcel of land in question originally belonged to the conjugal partnership
of spouses Gregorio Yap and Rosario Diez Yap;
2. 2.That Gregorio Yap, Jr. is the legitimate child of spouses Gregorio Yap and Rosario
Diez Yap;
3. 3.That Gregorio Yap is not a party in the execution of the Extra Judicial Settlement
of the Estate dated April 4, 1961;

4. 4.That all the encumbrances found in TCT No. (3447) T-2411 which is now marked
as Exh. C for the plaintiffs and Exh. 2 for the defendants as Entry No. 6719, 6720,
11561 and 11562 are admitted by the plaintiffs subject to the condition that the
Extra Judicial Settlement of Estate dated April 4, 1961, was made by the parties
that the same was only for the purpose of securing a loan with the Philippine
National Bank.
3

The trial court rendered judgment dismissing petitioners action. It dismissed

petitioners claim that the extrajudicial settlement was simulated and held it was
voluntarily signed by the parties. Observing that even without the need of having
title in her name Rosario Diez was able to obtain a loan using the land in question
as collateral, the court held that the extrajudicial settlement could not have been
simulated for the purpose of enabling her to obtain another loan. Petitioners failed
to overcome the presumptive validity of the extrajudicial settlement as a public
instrument.
The court instead found that petitioner Ancog had waived her right to the land,
as shown by the fact that on February 28, 1975, petitioners husband, Ildefonso
Ancog, leased the property from private respondent Diez. Furthermore, when the
spouses Ancog applied for a loan to the Development Bank of the Philippines using
the land in question as collateral, they accepted an appointment from Rosario Diez
as the latters attorney-in-fact.
4

The court also found that the action for partition had already prescribed. The
registration of the land under private respondent Rosario Diezs name amounted to
a repudiation of the co-ownership. Therefore, petitioners had ten (10) years from
April 13, 1961 within which to bring an action to recover their share in the property.
While it is true that petitioner Gregorio Yap, Jr. was a minor at the time the
extrajudicial settlement was executed, his claim, according to the court, was barred
by laches.
On appeal, the Court of Appeals upheld the validity of the extrajudicial
settlement and sustained the trial courts dismissal of the case. The appellate court
emphasized that the extrajudicial settlement could not have been simulated in order
to obtain a loan, as the new loan was merely in addition to a previous one which
private respondent Diez had been able to obtain even without an extrajudicial
settlement. Neither did petitioners adduce evidence to prove that an extrajudicial
settlement was indeed required in order to obtain the additional loan. The appellate

court held that considering petitioner Jovita Yap Ancogs educational attainment
(Master of Arts and Bachelor of Laws), it was improbable that she would sign the
settlement if she did not mean it to be such. Hence, this petition. Petitioners
contend that the Court of Appeals erred:
1. I.IN SUSTAINING THE TRIAL COURT RULING THAT THE CONTESTED
EXTRAJUDICIAL SETTLEMENT (EXHIBIT B) IS NOT A SIMULATED ONE;
2. II.IN BLOATING THE EDUCATIONAL BACKGROUND OF PETITIONER JOVITA
YAP ANCOG AND USING THE SAME AS ARGUMENT AGAINST HER CLAIM
THAT SAID EXHIBIT B WAS INDEED A SIMULATED DOCUMENT;
3. III.IN SUSTAINING THE TRIAL COURTS RULING THAT PETITIONERS
ACTION FOR PARTITION HAS PRESCRIBED; IV. IN RULING THAT
PETITIONER GREGORIO YAP, JR., ONE OF THE CO-OWNERS OF THE
LITIGATED PROPERTY, HAD LOST HIS RIGHTS TO THE PROPERTY
THROUGH PRESCRIPTION OR LACHES.

We hold that both the trial court and the Court of Appeals correctly acted in
upholding the extrajudicial settlement but erred in ruling that petitioner Gregorio
Yap, Jr. was barred by laches from recovering his share in the property in question.
To begin with, it is settled that the findings of facts of the Court of Appeals are
conclusive upon the parties and are not reviewable by this Court when they are an
affirmation of the findings of the trial court. In this case, the trial court and the
Court of Appeals found no evidence to show that the extrajudicial settlement was
required to enable private respondent Rosario Diez to obtain a loan from the Bank
of Calape. Petitioners merely claimed that the extrajudicial settlement was
demanded by the bank.
6

To the contrary, that the heirs (Jovita Yap Ancog and Caridad Yap) meant the
extrajudicial settlement to be fully effecttive is shown by the fact that Rosario Diez
performed acts of dominion over the entire land, beginning with its registration,
without any objection from them. Instead, petitioner Jovita Ancog agreed to lease
the land from her mother, private respondent Rosario Diez, and accepted from her a
special power of attorney to use the land in question as collateral for a loan she was
applying from the DBP. Indeed, it was private respondent Diez who paid the loan of
the Ancogs in order to secure the release of the property from mortgage.

Petitioner Jovita Yap Ancog contends that she could not have waived her share in
the land because she is landless. For that matter, private respondent Caridad Yap is
also landless, but she signed the agreement. She testified that she did so out of filial
devotion to her mother.
7

Thus, what the record of this case reveals is the intention of Jovita Ancog and
Caridad Yap to cede their interest in the land to their mother Rosario Diez. It is
immaterial that they had been initially motivated by a desire to acquire a loan.
Under Art. 1082 of the Civil Code, every act which is intended to put an end to
indivision among co-heirs is deemed to be a partition even though it should purport
to be a sale, an exchange, or any other transaction.
8

We hold, however, that the Court of Appeals erred in ruling that the claim of
petitioner Gregorio Yap, Jr. was barred by laches. In accordance with Rule 74, 1 of
the Rules of Court, as he did not take part in the partition, he is not bound by the
settlement. It is uncontroverted that, at the time the extrajudicial settlement was
executed, Gregorio Yap, Jr. was a minor. For this reason, he was not included or
even informed of the partition.
9

10

Instead, the registration of the land in Rosario Diezs name created an implied
trust in his favor by analogy to Art. 1451 of the Civil Code, which provides:
When land passes by succession to any person and he causes the legal title to be put in the
name of another, a trust is established by implication of law for the benefit of the true
owner.
In the case of OLaco v. Co Cho Chit, Art. 1451 was held as creating a resulting trust, which is founded on the
11

presumed intention of the parties. As a general rule, it arises where such may be reasonably presumed to be the
intention of the parties, as determined from the facts and circumstances existing at the time of the transaction
out of which it is sought to be es-tablished. In this case, the records disclose that the intention of the parties to
12

the extrajudicial settlement was to establish a trust in favor of petitioner Yap, Jr. to the extent of his share.
Rosario Diez testified that she did not claim the entire prop-erty, while Atty. de la Serna added that the
13

partition only involved the shares of the three participants.

14

A cestui que trust may make a claim under a resulting trust within 10 years from the time the trust is
repudiated. Although the registration of the land in private respondent Diezs name operated as a constructive
15

notice of her claim of ownership, it cannot be taken as an act of repudiation adverse to petitioner Gregorio Yap,
Jr.s claim, whose share in the property was precisely not included by the parties in the partition. Indeed, it has
not been shown whether he had been informed of her exclusive claim over the entire property before 1985 when
he was notified by petitioner Jovita Yap Ancog of their mothers plan to sell the property.

16

This Court has ruled that for prescription to run in favor of the trustee, the trust must be repudiated by
unequivocal acts made known to the cestui que trust and proved by clear and conclusive evidence. Furthermore,
the rule that the prescriptive period should be counted from the date of issuance of the Torrens certificate of
title applies only to the remedy of reconveyance under the Property Registration Decree. Since the action
17

brought by petitioner Yap to claim his share was brought shortly after he was informed by Jovita Ancog of their
mothers effort to sell the property, Gregorio Yap, Jr.s claim cannot be considered barred either by prescription
or by laches.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that this case
is REMANDED to the Regional Trial Court for the determination of the claim of petitioner Gregorio Yap, Jr.
SO ORDERED.
Regalado (Chairman) and Romero, JJ., concur.
Puno and Torres, Jr., JJ., No part: See footnote 1.
Judgment affirmed with modification.
Note.If property is acquired through mistake or fraud, the person obtaining it is considered a trustee of an
impliedtrust for the benefit of the person from whom the property comes. (Noel vs. Court of Appeals, 240 SCRA
78 [1995])

o0o
[No. L-3404. April 2, 1951]
ANGELA I. TUASON, plaintiff and appellant, vs.ANTONIO TUASON, JR., and
GREGORIO ARANETA, INC., defendants and appellees.
COMMUNITY PROPERTY; PARTITION; RESCISSION.A contract among land
co-owners wherein they agreed to fill their property, construct roads therein and then
subdivide it into small lots for sale, the proceeds to be later divided among them, and to
this end one of them was to finance the whole development and subdivision, to prepare a
schedule of prices and conditions of sale subject to the approval of the other two coowners, to sell the subdivided lots and execute the corresponding contracts with buyers,
and to receive 50 per cent of the gross selling price of the lots and the rents that may be
collected f rom the property while in the process of sale, the remaining 50 per cent to be
divided in equal portions among the three co-owners,does not violate article 400 of the
Civil Code. Far from violating the prohibition against a co-owner being obliged to remain
a party to the community, the contract precisely has for its purpose and object the

dissolution of the co-ownership and of the community by selling the parcel held in
common and dividing the proceeds of the sale among the co-owners. The obligation
imposed in the contract to preserve the co-ownership until all the lots shall have been
sold is a mere incident to the main object of dissolving the co-ownership.

APPEAL from a judgment of the Court of First Instance of Manila. Pea, J.

The facts are stated in the opinion of the Court.
Alcuaz & Eiguren for appellant.
Araneta & Araneta for appellees.
MONTEMAYOR, J.:
In 1941 the sisters Angela L Tuason and Nieves Tuason de Barreto and their
brother Antonio Tuason Jr., held a parcel of land with an area of 64,928.6 sq. m.
covered by Certificate of Title No. 60911 in Sampaloc, Manila, in common, each
owning an undivided 1/3 portion. Nieves wanted and asked for a partition of the
common property, but failing in this, she offered to sell her 1/3 portion. It seems
that the objection to dividing the property was that it would lose in value by the
proposed partition. The share of Nieves was offered for sale to her sister and her
brother but both declined to buy it. The offer was later made to their mother but the
old lady also declined to buy, saying that if the property later increased in value, she
might be suspected of having taken advantage of her daughter. Finally, the share of
Nieves was sold to Gregorio Araneta Inc., a domestic corporation, and a new
Certificate of Title No. 61721 was issued in lieu of the old title No. 60911 covering
the same property. The three co-owners agreed to have the whole parcel subdivided
into small lots and then sold, the proceeds of the sale to be later divided among
them. This agreement is embodied in a document (Exh. 6) entitled "Memorandum of
Agreement" consisting of ten pages, dated June 30, 1941.
Before, during and after the execution of this contract (Exh. 6), Atty. J. Antonio
Araneta was acting as the attorney-in-fact and lawyer of the two co-owners, Angela
I. Tuason and her brother Antonio Tuason Jr. At the same time he was a member of
the Board of Directors of the third co-owner, Araneta, Inc.

The pertinent terms of the contract (Exh. 6) may be briefly stated as follows: The
three co-owners agreed to improve the property by filling it and constructing roads
and curbs on the same and then subdivide it into small lots for sale. Araneta Inc.
was to finance the whole development and subdivision; it was to prepare a schedule
of prices and conditions of sale, subject to the approval of the two other co-owners; it
was invested with authority to sell the lots into which the property was to be
subdivided, and execute the corresponding contracts and deeds of sale; it was also to
pay the real estate taxes due on the property or of any portion thereof that remained
unsold, the expenses of surveying, improvements, etc., all advertising expenses,
salaries of personnel, commissions, office and legal expenses, including expenses in
instituting all actions to eject all tenants or occupants on the property; and it
undertook the duty to furnish each of the two co-owners, Angela and Antonio
Tuason, copies of the subdivision plans and the monthly sales and rents and
collections made thereon. In return f or all this undertaking and obligation assumed
by Araneta Inc., particularly the financial burden, it was to receive 50 per cent of
the gross selling price of the lots, and any rents that may be collected from the
property, while in the process of sale, the remaining 50 per cent to be divided in
equal portions among the three co-owners so that each will receive 16.33 per cent of
the gross receipts.
Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh. 6), for
purposes of reference we are reproducing them below:
"(9) This contract shall remain in full force and effect during- all the time that it may be
necessary f or the PARTY OF THE SECOND PART to fully sell the said property in small
and subdivided lots and to fully collect the purchase prices due thereon; it being understood
and agreed that said lots may be rented while there are no purchasers thereof; "(11) The
PARTY OF THE SECOND PART (meaning Araneta Inc.) is hereby given full power and
authority to sign for and in behalf of all the said co-owners of said property all contracts of
sale and deeds of sale of the lots Into which this property might be sub-divided; the powers
herein vested to the PARTY OF THE SECOND PART may not be revoked until the
purposes of this contract have been fulfilled and carried out, and the PARTY OF THE
SECOND PART may, under its own responsibility and risk, delegate any of its powers
under this contract to any of its officers, employees or to third persons;
"(15) No co-owner of the property subject-matter of this contract shall sell, alienate or
dispose of his ownership, interest or participation therein without first giving preference to
the other co-owners to purchase and acquire the same under the same terms and conditions

as those offered by any other prospective purchaser. Should none of the co-owners of the
property subject-matter of this contract exercise the said preference to acquire or purchase
the same, then such sale to a third party shall be made subject to all the conditions, terms,
and dispositions of this contract; provided, the PARTIES OF THE FIRST PART (meaning
Angela and Antonio) shall be bound by this contract as long as the PARTY OF THE
SECOND PART, namely, the GREGORIO ARANETA, INC. is controlled by the members of
the Araneta family, who are stockholders of the said corporation at the time of the signing
of this contract and/or their lawful heirs;"

On September 16, 1944, Angela I. Tuason revoked the powers conferred on her
attorney-in-fact and lawyer, J. Antonio Araneta. Then in a letter dated October 19,
1946, Angela notified Araneta, Inc. that because of alleged breach of the terms of
the "Memorandum of Agreement" (Exh. 6) and abuse of powers granted to it in the
document, she had decided to rescind said contract and she asked that the property
held in common be partitioned. Later, on November 20, 1946, Angela filed a
complaint in the Court of First Instance of Manila asking the court to order the
partition of the property in question and that she be given1/3 of the same including
rents collected during the time that Araneta Inc., administered said property.
The suit was directed principally against Araneta, Inc. Plaintiff's brother,
Antonio Tuason Jr., one of the co-owners evidently did not agree to the suit and its
purpose, for he joined Araneta, Inc. as a co-defendant. After hearing and after
considering the extensive evidence introduced, oral and documentary, the trial court
presided over by Judge Emilio Pea in a long and considered decision dismissed the
complaint without pronouncement as to costs. The plaintiff appealed f rom that
decision, and because the property is valued at more than P50,000, the appeal came
directly to this Court.
Some of the reasons advanced by appellant to have the memorandum contract
(Exh. 6) declared null and void or rescinded are that she had been tricked into
signing it; that she was given to understand by Antonio Araneta acting as her
attorney-in-fact and legal adviser that said contract would be similar to another
contract of subdivision of a parcel into lots and the sale thereof entered into by
Gregorio Araneta Inc., and the heirs of D. Tuason, Exhibit "L", but it turned out
that the two contracts widely differed from each other, the terms of contract Exh.
"L" being relatively much more favorable to the owners therein and less favorable to
Araneta Inc.; that Atty. Antonio Araneta was more or less disqualified to act as her
legal adviser as he did because he was one of the officials of Araneta Inc., and

finally, that the defendant company has violated the terms of the contract (Exh. 6)
by not previously showing her the plans of the subdivision, the schedule of prices
and conditions of the sale, in not introducing the necessary improvements into the
land and in not delivering to her her share of the proceeds of the rents and sales.
We have examined Exh. "L" and compared the same with the contract (Exh. 6)
and we agree with the trial court that in the main the terms of both contracts are
similar and practically the same. Moreover, as correctly found by the trial court, the
copies of both contracts were shown to the plaintiff Angela and her husband, a
broker, and both had every opportunity to go over and compare them and decide on
the advisability of or disadvantage in entering into the contract (Exh. 6); that
although Atty. Antonio Araneta was an official of the Araneta Inc.; being a member
of the Board of Directors of the Company at the time that Exhibit "6" was executed,
he was not the party with which Angela contracted, and that he committed no
breach of trust. According to the evidence Araneta, Inc. showed to her the plans of
the subdivision and all the pertinent papers, and sent to her checks covering her
share of the proceeds of the sale but that she ref used to receive the same; and that
as a matter of fact, at the time of the trial, Araneta Inc., had spent about P1 17,000
in improvement and had received as proceeds on the sale of the lots the respectable
sum of P1,265,538.48. We quote with approval that portion of the decision appealed
from on these points:
"The evidence in this case points to the fact that the actuations of J. Antonio Araneta in
connection with the execution of exhibit 6 by the parties, are above board. He committed
nothing that is violative of the fiduciary relationship existing between him and the plaintiff.
The act of J. Antonio Araneta in giving the plaintiff a copy of exhibit 6 before the same was
executed, constitutes a full disclosure of the facts, for said copy contains all that appears
now in exhibit 6.
"Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing the terms of the
contract in that the defendant corporation has failed (1) to make the necessary
improvements on the property as required by paragraphs 1 and 3 of the contract; (2) to
submit to the plaintiff from time to time schedule of prices and conditions under which the
subdivided lots are to be sold; and to furnish the plaintiff a copy of the subdivision plans, a
copy of the monthly statement of the sales and rents of the subdivided lots, and a statement
of the monthly gross collections from the sale of the property.

"The Court finds from the evidence that the defendant Gregorio Araneta, Incorporated
has substantially complied with the obligation imposed by the contract exhibit 6 in its
paragraph 1, and that for improvements alone, it has disbursed the amount of P117,167.09.
It has likewise paid taxes, commissions and other expenses incidental to its obligations as
defined in the agreement.
"With respect to the charge that Gregorio Araneta, Incorporated has failed to submit to
plaintiff a copy of the subdivision plans, list of prices and the conditions governing the sale
of subdivided lots, and monthly statement of collections f rom the sale of the lots, the Court
is of the opinion that it has no basis. The evidence shows that the defendant corporation
submitted to the plaintiff periodically all the data relative to prices and conditions of the
sale of the subdivided lots, together with the amount corresponding to her. But without any
justifiable reason, she refused to accept them. With the indifferent attitude adopted by the
plaintiff, it was thought useless for Gregorio Araneta, Incorporated to continue sending her
statement of accounts, checks and other things. She had shown on various occasions that
she did not want to have any further dealings with the said corporation. So, if the defendant
corporation proceeded with the sale of the subdivided lots without the approval of the
plaintiff, it was because it was under the correct impression that under the contract exhibit
6 the decision of the majority co-owners is binding upon all the three. "The Court feels that
rescission of the contract exhibit 6 is not in order. Even granting that the defendant
corporation committed minor violations of the terms of the agreement, the general rule is
that 'rescission will not be permitted for a slight or casual breach of the contract, but only
for such breaches as are so substantial and fundamental as to defeat the object of the
parties in making the agreement' (Song Fo & Co. vs. Hawaiian-Philippine Co., 47 Phil.
821)."

As regards improvements, the evidence shows that during the Japanese occupation
from 1942 and up to 1946, the Araneta Inc. although willing to fill the land, was
unable to obtain the equipment and gasoline necessary for filling the low places
within the parcel. As to sales, the evidence shows that Araneta Inc. purposely
stopped selling the lots during the Japanese occupantion, knowing that the
purchase price would be paid in Japanese military notes; and Atty. Araneta claims
that for this, plaintiff should be thankfull because otherwise she would have
received these notes as her share of the receipts, which currency later became
valueless.
But the main contention of the appellant is that the contract (Exh. 6) should be
declared null and void because its terms, particularly paragraphs 9, 11 and 15

which we have reproduced, violate the provisions of Art. 400 of the Civil Code, which
for the purposes of reference we quote below:
"ART. 400. No co-owner shall be obliged to remain a party to the community. Each may, at
any time, demand the partition of the thing held in common.
"Nevertheless, an agreement to keep the thing undivided for a specified length of time,
not exceeding ten years, shall be valid. This period may be a new agreement."

We agree with the trial court that the provisions of Art. 400 of the Civil Code are
not applicable. The contract (Exh.. 6) far from violating the legal provision that
forbids a co-owner being obliged to remain a party to the community, precisely has
for its purpose and object the dissolution of the co-ownership and of the community
by selling the parcel held in common and dividing the proceeds of the sale among
the co-owners. The obligation imposed in the contract to preserve the co-ownership
until all the lots shall -have been sold, is a mere incident to the main object of
dissolving the co-ownership. By virtue of the document Exh. 6, the parties thereto
practically and substantially entered into a contract of partnership as the best and
most expedient means of eventually dissolving the co-ownership, the life of said
partnership to end when the object of its creation shall have been attained.
This aspect of the contract is very similar to and was perhaps based on the other
agreement or contract (Exh. "L") referred to by appellant where the parties thereto
in express terms entered into a partnership, although this object is not expressed in
so many words in Exh. 6. We repeat that we see no violation of Art. 400 of the Civil
Code in -the parties entering into the contract (Exh. 6) for the very reason that Art.
400 is not applicable.
Looking at the case from a practical standpoint as did the trial court, we find no
valid ground for the partition insisted upon the appellant. We find from the evidence
as was done by the trial court that of the 64,928.6 sq. m. which is the total area of
the parcel held in common, only 1,600 sq. m. or 2.5 per cent of the entire area
remained unsold at the time of the trial in the year 1947, while the great bulk of
97.5 per cent had already been sold. As well observed by the court below, the
partnership is in the process of being dissolved and is about to be dissolved, and
even assuming that Art. 400 of the Civil Code were applicable, under which the
parties by agreement may agree to keep the thing undivided for a period not

exceeding 10 years, there should be no fear that the remaining 1,600 sq. m. could
not be disposed of within the four years left of the ten-year period fixed by Art. 400.
We deem it unnecessary to discuss and pass upon the other points raised in the
appeal and which counsel for appellant has extensively and ably discussed, citing
numerous authorities. As we have already said, we have viewed the case from a
practical standpoint, brushing aside technicalities and disregarding any minor
violations of the contract, and in deciding the case as we do, we are fully convinced
that the trial court and this Tribunal are carrying out in a practical and expeditious
way the intentions and the agreement of the parties contained in the contract (Exh.
6), namely, to dissolve the community and co-ownership, in a manner most
profitable to the said parties.
In view of the foregoing, the decision appealed from is hereby affirmed. There is
no pronouncement as to costs. So ordered.
Pars, C. J., Pablo, Bengzon, Padilla, Tuason, Reyes,Jugo and Bautista Angelo,
JJ., concur.
Pars, C. J.:
I certify that Mr. Justice Feria voted to affirm.
Judgment affirmed.
______________

G.R. No. 108580. December 29, 1998.

CLARITA P. HERMOSO and VICTORIA P. HERMOSO, petitioners, vs. COURT OF

APPEALS, SPOUSES CEFERINO C. PALAGANAS, AZUCENA R. PALAGANAS
and DR. AMANDA C. PALAGANAS, respondents.
Co-ownership; Partition; Succession; An agreement among certain heirs as to shares
following one another in a specific order cannot be binding on the co-owner who owns 2/3 of
the entire parcel but who was not a signatory or party to the document.We agree with the
trial court that this Agreement was merely a scheme as to how the land would be
subdivided in the future among the heirs. The owner of two-thirds (2/3) of the property,
Consolacion Hermoso, was not a party to the agreement. As a majority owner of the
undivided property, she could have demanded and insisted on getting the particular
portions which the respondent court ruled had already been segregated in favor of the two
vendors-brothers. The agreement among the heirs of Emilio Hermoso as to shares following
one another in a specific order cannot be binding on the co-owner who owns 2/3 of the entire
parcel but who was not a signatory or party to the document.
Same; Same; Same; The statement of certain heirs that the 2/3 portion of the co-owner
who did not participate in the execution of a document shall be adjacent to that of a certain
co-owner followed by the shares of some other co-owners is a statement of a desire on how the
land should be subdivided, which is not the kind of division or partition of property which
clearly terminates co-ownership.The reference to a stonewall separating the shares of
Consolacion Hermoso Cruz from the share of Clarita Carin and the use thereof as reference
point should not be taken to mean that thereby a partition was effected among the heirs.
The statement of the Heirs of Emilio Hermoso that the 2/3 portion of the co-owner in
relation to the heirs of Emilio shall be adjacent to that of Clarita Carin followed by the
shares of Rogelio, Danilo, Victorina and Agustinito is a statement of a desire on how the

land should be subdivided. It cannot be said that it is a kind of division or partition of

property which clearly terminates co-ownership. The statement of Agustinito of an
assignment of shares cited by the respondent court was more of an expression on how a
future partition should be effected. In fact, the word positions was used in addition to
shares.
Same; Same; Sales; Redemption; The interpretation of the legal provisions on
redemption always tilts in favor of the redemptioner as against the vendee.It is to be noted
that Article 1623 stresses the need for notice in writing in three other species of legal
redemption namely: (1) redemption in a case where the share of all the other co-owners or
any of them are sold to a third person; (2) redemption by owners of adjoining lands when a
piece of rural land not exceeding one hectare in area is alienated; and (3) redemption by
owners of adjoining lands in the sale of a piece of an urban land so small and so situated
that the portion thereof cannot be used for any practical purpose within a reasonable time,
having been bought merely for speculation. In all the above-cited provisions of law, the
interpretation thereof always tilts in favor of the redemptioner and against the vendee. The
purpose is to reduce the number of participants until the community is terminated, being a
hindrance to the development and better administration of the property.
Same; Same; Same; Same; If a co-owner has offered to redeem the land within the
period fixed by law, he has complied with the lawhe may bring the action to enforce the
redemption after every offer has been rejected.In this case, the land has not been validly
partitioned between Consolacion Hermoso, who owns 2/3 and the heirs of Emilio Hermoso
who own 1/3 regardless of the sentiments of Consolacion on the land in dispute may later
have been. There has been no subsequent distribution among the co-heirs of their specific
shares. But even granting that the heirs divided the properties owned in common in the
May 29, 1974 Agreement, the right of legal redemption under Article 1620 of the Code,
would still subsist in their capacity as co-owners. For, if a co-owner has offered to redeem
the land within the period fixed by law, he has complied with the law. He may bring the
action to enforce the redemption after every offer has been rejected. This is exactly the
situation in this case.
Same; Same; Same; Same; Obligations; Prescription; The period of legal redemption is
not a prescriptive periodit is a condition precedent to the exercise of the right of
redemption.It was error for the respondent court to rule that the right of the petitioner to
redeem the alienated share had long prescribed. This finding fails to take into account that
the period of legal redemption is not a prescriptive period. It is a condition precedent to the
exercise of the right of redemption. It is a period set by law to restrict the right of the person
exercising the right of legal redemption. It is not one of prescription.

Same; Same; Same; Same; The written notice required by Article 1623 of the Civil Code
was enacted to remove all doubts and uncertainty that the alienation may not be definite;
While the law requires that the notice must be in writing, it does not state any particular
form thereof, so long as the reasons for a written notice are present.The written notice
required by Article 1623 of the Civil Code was enacted to remove all doubts and uncertainty
that the alienation may not be definite. The co-owners must know with certainty the
circumstances of the sale by his co-owners and the terms and the validity of the alienation.
Only after said knowledge is the co-owner required to exercise the right of redemption given
to him by law. While the law requires that the notice must be in writing, it does not state
any particular form thereof, so long as the reasons for a written notice are present. The
records of the case show that the sale of the brothers share was deliberately hidden from
the petitioners. For sometime after the sale, the petitioners were ignorant about its
execution. When they somehow heard rumors about it, they had to take one step after
another to find out if the information was true.
Same; Same; Same; Same; When the redemptioner offers to redeem within the period
fixed by law, he has complied with the condition precedent to the exercise of his rightthe
filing of an action to enforce the redemption is not the determining point. When the
petitioners offered to redeem within the period fixed by law, they complied with the
condition precedent to the exercise of their right. The filing of an action to enforce the
redemption is not the determining point in time. In Conejero, supra, this Court ruled that a
consignation of the tendered price is not necessary as long as a valid tender is present.
However, the offer to redeem is indispensable. Considering the indignation and the wrath of
the petitioners directed at the two brothers for their acts of alienating an undivided portion
of the property, despite the earlier redemption of the sale sold in 1979, there can be no
question about the willingness and capability of the petitioners to buy back the shares sold
in 1980.
Same; Same; Same; Same; Equity; In applying Article 1623 of the Civil Code on the
exercise of legal redemption to certain facts, the interpretation must be in favor of justice and
equity.In applying Article 1623 of the Civil Code on the exercise of legal redemption to
certain facts, the interpretation must be in favor of justice and equity. This Court explained
x x x. We test a law by its result. A law should not be interpreted so as not to cause an
injustice x x x. There are laws which are generally valid but may seem arbitrary when
applied in a particular case because of its peculiar circumstances. We are not bound to
apply them inslavish obedience to their language. Whether it is the vendees who will
prevail as in the Alonzo doctrine, or the redemptioners as in this case, the righting of justice
is the key to the resolution of the issues.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Zosa & Quijano Law Offices for petitioners.
Lino M. Patajo and Hildawa and Gomez for private respondents.
MARTINEZ, J.:
This petition seeks the review of the decision dated July 24, 1992 of the Court of
Appeals which reversed the decision dated February 15, 1990 of the Regional Trial
Court of Bulacan in an action for legal redemption instituted by the petitioners
against the private respondents. The motion for reconsideration of petitioners was
likewise denied by the respondent court in its resolution dated December 22, 1992.
1

There is not much dispute about the background facts, thus we quote with favor
the factual antecedents as summarized by the Court of Appeals, to wit:
Emilio Hermoso, now deceased, and plaintiff Clarita Hermoso, were husband and wife
whose union was blessed with the following children: Rogelio, Victoria (another plaintiffappellee), Agustinito and Danilo Ciriaco, all surnamed Hermoso (the latter two being third
party defendants-appellees). Emilio Hermoso died on June 22, 1957, leaving as his
surviving heirs, his wife Clarita, and the four above-named children. Among the properties
left by Emilio Hermoso is an undivided one-third portion of a parcel of land, the whole of
which consisting of 7,842 square meters, more or less, is now covered by OCT No. 0-1054
(M) issued in 1983, situated at Calvario, Meycauayan, Bulacan.
The property was originally owned by Agrifina Francia and the ownership thereof was
transmitted upon her death to her three (3) children, to wit: Isidro, Consolacion, and Emilio
(herein appellees predecessor-in-interest) in the proportion of one-third (1/3) each.
Consolacion Hermoso, married to Manuel Cruz, later bought the one-third (1/3) undivided
share of her brother, Isidro Hermoso. Thus, as indicated in OCT No. 0-1054 (M),
Consolacion Hermoso owns two-thirds (2/3) thereof and the remaining one-third (1/3) is in
the name of the Heirs of Emilio Hermoso [Exhibit A].
On May 29, 1974, the Heirs of Emilio Hermoso executed a duly notarized Agreement
[Exh. 1-A], the pertinent portion of which reads, as follows:
2. That it is hereby agreed that for the convenience of all parties the following shall be observed in
the partition of the above-mentioned properties: that the share of CLARITA P. CARIN shall in all
cases be adjacent to the properties adjudicated to CONSOLACION HERMOSO CRUZ; then following

by the shares pertaining to DANILO CIRIACO HERMOSO, VICTORINA P. HERMOSO, ROGELIO

P. HERMOSO and AGUSTINITO P. HERMOSO, respectively, except in the partition of the parcel of
land situated in Calvario, Meycauayan, Bulacan, which is the subject of the DEED OF EXCHANGE
above-mentioned, in which case the share pertaining to CLARITA P. CARIN shall be adjacent to the
stonewall that segregates the share of CONSOLACION HERMOSO CRUZ, then followed by the
shares pertaining to ROGELIO P. HERMOSO, DANILO CIRIACO HERMOSO, VICTORINA P.
HERMOSO, and AGUSTINITO P. HERMOSO, at the extreme end, respectively. [Emphasis and
italics Ours]

Sometime in July, 1979, third party defendants-appellees Agustinito Hermoso and Danilo
Hermoso (Hermoso brothers for brevity) offered to sell their respective shares to the land
in dispute to one Benjamin Palaganas, brother of appellees Ceferino Palaganas and
Amanda Palaganas, who are old family acquaintances of the Hermosos since the lifetime of
their late landlord, Don Marcos Hermoso.
Upon being shown a copy of the duly notarized Agreement [Exh. 1-A], Ben Palaganas,
together with the Hermoso brothers, approached Atty. Ireneo E. Guardiano concerning the
preparation of a contract of sale, with the latter noting that the shares offered for sale are
separated by the share of Victoria Hermoso; hence, it would be more feasible for Danilo
Ciriaco to execute a deed of exchange with his sister, Victoria [TSN, 29 October 1986, p. 8].
A Deed of Exchange [Exh. 11] was thereafter drawn and signed by Danilo Ciriaco
Hermoso but the same was not however signed by Victoria Hermoso.
Nonetheless, this transaction did not materialize for the reasons that Clarita Carin
subsequently offered to redeem the shares sold by her children by returning the amount
already received by her son, Agustinito. By reason of their good relations and it appearing
that the sale was made without the knowledge and consent of Clarita Carin, Ben Palaganas
accepted the offer without suspiration.
In the month of October of the same year, Agustinito, then reviewing for the Bar
Examinations, and Danilo, in dire need of money, for the second time offered to sell their
respective shares to Ben Palaganas who acted for and in behalf of his brother, Dr. Ceferino
Palaganas, and sister, Dr. Amanda Palaganas (Palaganases, for brevity), this time giving
assurance that their mother (Clarita Carin) had already consented to the transaction and
that they could convince their sister, Victoria, to finally agree to an exchange of shares with
Danilo. Elated with this development, the Palaganases even offered a higher price
[P500,000.00] for the sale.
Thus, with these assurances, the parties executed on January 30, 1980 a duly notarized
Deed of Absolute Sale Over Two Undivided Shares To A Parcel of Land (Annex B,
Plaintiffs-Appellees; Exhibit 2, Appellants) with the Hermoso brothers receiving

P300,000.00 upon the execution of the contract, P100,000.00 to be paid upon the eviction of
the squatters/tenants thereon, and the balance of P100,000.00 to be paid upon the issuance
of title in the name of the vendees.
Upon the commencement of the present action (October 8, 1984), the Hermoso brothers
have already received a total amount of P401,500.00 with the last conditiontransfer of
titlenot having been yet fulfilled.
Contrary to the assurances made by the Hermoso brothers, plaintiffs-appellees
allegedly came to have known of the transaction only sometime between May, 1983 and
January, 1984 (Complaint, par. 8 in relation to TSN, 21 Nov. 1984, p. 32, Victoria Hermoso).
Thereafter, plaintiffs-appellees allegedly made arrangements to negotiate for the
redemption of the shares sold by the Hermoso brothers. This time, however, the
Palaganases were not so open to the idea of the offered repurchase for the value of the
property in dispute had considerably increased and that they have already set foothold on
said property by reason of their investments and the plans made for its development.
Furthermore, they relied upon the assurances made by the Hermoso brothers that the
transaction is known to Clarita Carin and Victoria Hermoso.
3

Consequently, considering the adamant refusal of the private respondents to resell

the disputed lots, petitioners on October 8, 1984 filed a complaint for legal
redemption before the Regional Trial Court of Bulacan, Branch 7, Malolos, with
prayer for the issuance of a writ of preliminary injunction to enjoin defendants
third-party plaintiffs from proceeding with the construction of the building thereon.
The trial court issued the writ prayed for. After trial on the merits, the court a
quo issued its decision dated February 15, 1990, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the
defendants and third-party defendants as follows:
1. 1.Ordering the defendants to allow the redemption of the shares sold to them by
their vendors, the third party defendants herein, and upon payment of the amount
of Four Hundred One Thousand Five Hundred (P401,500.00) Pesos, to surrender
the possession of the portion of the land covered by OCT No. 0-1054 (N), together
with whatever improvement they have constructed on the property, to the plaintiffs;
1. 2.Ordering the defendants to pay the plaintiffs, the amount of Twenty Thousand
(P20,000.00) Pesos by way of actual damages to cover the transportation expenses
of the plaintiffs from Cebu to Malolos and back and also attorneys fees in the

amount of Fifteen Thousand (P15,000.00) Pesos which plaintiffs have paid or are
bound to pay their counsel;
2. 3.Ordering the third party defendants to pay the defendants, damages by way of
legal interest in the amount computed at the rate of twelve (12%) per cent of the
P401,500.00 which shall commence from the date of the filing of the complaint on
October 8, 1984 until the said amount of P401,500.00 shall have been completely
paid to the defendants by the said plaintiffs.
Costs against the defendants.

On appeal, the issues were simplified by the respondent court as follows:

1. 1.Whether or not the property in dispute is still co-owned or has actually been
partitioned thereby terminating the co-ownership;
2. 2.If otherwise, whether or not the plaintiffs-appellees could still exercise the rights of
redemption.

The respondent court disagreed with the findings of the trial court and was of the
view that laws and jurisprudence favor the appellants, hence we reverse. The
dispositive portion of the appellate courts decision reads:
WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED,
and a new one is entered dismissing the Complaint and ordering Third-Party Defendants to
pay on the Third Party Complaint, the Third Party Plaintiffs the amount of P10,000.00 by
way of attorneys fees.
The parties shall bear their respective costs.

In this petition for review, Clarita P. Hermoso, now Clarita Carin after her
remarriage, and her daughter Victoria P. Hermoso, raise the following grounds:
I.
THE RESPONDENT COURT ERRED IN NOT AGREEING WITH THE HOLDING OF
THE TRIAL COURT THAT THE AGREEMENT, MARKED AS EXHIBIT 1-A, IS NOT A
DEED OF PARTITION BUT IS A MERE SCHEME AS TO HOW TO PARTITION THE
PROPERTY IN QUESTION WHICH IS TEMPORARY IN CHARACTER AND SUBJECT
TO CHANGE AT ANY TIME AND IS NULL AND VOID AS FAR AS PETITIONER
VICTORIA P. HERMOSO IS CONCERNED BECAUSE SHE WAS STILL A MINOR WHEN

SAID AGREEMENT WAS EXECUTED AND HER CO-PETITIONER CLARITA P.

HERMOSO HAD NO AUTHORITY TO SIGN SAID AGREEMENT IN HER BEHALF.
II.
THE RESPONDENT COURT ERRED IN NOT HOLDING THAT THE PROPERTY IN
QUESTION WAS STILL UNDIVIDED AND WAS STILL UNDER CO-OWNERSHIP
DESPITE THE EXECUTION OF THE AGREEMENT MARKED AS EXHIBIT 1-A
BECAUSE CONSOLACION HERMOSO, CO-OWNER OF 2/3 OF SAID PROPERTY, WAS
NOT A PARTY TO SAID AGREEMENT;
III.
THE RESPONDENT COURT ERRED IN COUNTING THE DATE WHEN THE RIGHT
OF REDEMPTION SHOULD BE EXERCISED FROM THE TIME THE PETITIONERS
MADE A FORMAL OFFER TO REDEEM INSTEAD OF FROM THE TIME THE
PETITIONERS STARTED NEGOTIATING FOR THE REDEMPTION OF THE TWO
UNDIVIDED SHARES AFTER THEY WERE CERTAIN THAT SAID UNDIVIDED
SHARES WERE SOLD TO THE PRIVATE RESPONDENTS.
6

The trial and appellate courts disagreed as to the interpretation to be given to the
agreements and contracts and to the notice of sale involved in this case.
In the trial court, petitioners posited the theory that the disputed land is still
under co-ownership. On the basis of the same documentary evidence, the private
respondents contend that what the two brothers sold was already definite since
partition had already been effected.
The first two (2) grounds for this petition refer to the nature of the land sold to
the respondents. The question is: Was it still under co-ownership or had it already
been partitioned and divided among the co-owners?
In finding that the parcel of land covered and described in OCT No. 0-1054 (M)
had not been divided or partitioned among the co-owners, the trial court said:
In fact, there is no division yet between the spouses, Manuel Cruz and Consolacion
Hermoso Cruz on one hand and the Heirs of Emilio Hermoso on the other. This fact of coownership is easily discernible in the title itself which has not yet been cancelled, and
therefore still subsisting.

Therefore, it is ordered by the Court that said land be registered in accordance with the provisions of
the Land Registration Act, as amended,in the name of said spouses, Manuel C. Cruz and Consolacion
Hermoso; and heirs of Emilio Hermoso, namely: Clarita Pajo, Victoria Hermoso, Rogelio Hermoso,
Agustinito Hermoso, and Danilo Hermoso as their exclusive property,

The documents relating to the shares of the third party defendants readily show this
fact of co-ownership. Thus, in the untitled instrument introduced by the defendants marked
as Exhibit 3 which is an agreement to sell purportedly bearing the date October 10, 1979
signed by the Hermoso brothers, Agustinito and Danilo and stating how the P500,000.00
consideration of the sale shall be paid, what was referred to have been sold were the shares,
rights and interests over the land of the said vendors. This document states, among others:
That we have agreed to sell, transfer and convey unto spouses Dr. Ceferino C. Palaganas and Azucena
R. Palaganas, both of legal age, Filipinos and with residence and postal address at Baga,
Meycauayan, Bulacan all our shares, rights and interests over the above-described parcel of land free
from all liens and encumbrances under the following terms and conditions x x x Cf. Exhibit 3, def.,
italics supplied.

The document signed by the two brothers on January 30, 1980 was obviously prepared
at the instance of Ben Palaganas. Acknowledged before Notary Public Ireneo Guardiano
whose advice was sought by Ben Palaganas, its title is immediately revealing, as it is titled
Deed of Absolute Sale Over Two Undivided Shares to a Parcel of Land Cf. Exhibit C, pl.,
Exhibit 2, def., italics supplied. It is also stated in this document that what was sold by the
Hermoso brothers were shares, rights and interests over the above-described parcel of land
(which obviously refers to the land in question).
It is significant to note that in the deed of sale marked as Exhibit 2, defendant, the area
of the shares of the vendors, the Hermoso brothers were not specified. What was mentioned
on the matter of area is that of the whole parcel which is 7,829 square meters. If there was
a partition or separation of the portions of the whole land assigned to the owners named in
the title, the parcels conveyed could have been described with their specified metes and
bounds.
There was no subdivision plan presented by the defendants. In fact, there was none as
yet executed by a duly licensed geodetic engineer on that registered land. Ben Palaganas
who was then dealing with the Hermoso brothers, the named vendors in the document, is a
highly educated man. As he had testified, he is an accountant by profession and he had
served as head of a department of the Central Bank until his retirement from the
government. In the opinion of this court, he knew all along that what he or his principals
were buying at the time were the undivided shares, participation and interests of the
vendors to the land. His claim later in court that the shares of the vendors could already be

identified and segregated is difficult to believe. If his claim were true, Ben Palaganas with
his experience and educational background could have easily managed to execute the proper
document as a basis of an ultimate issuance of title in the name of the vendees. The
document which he relied upon which is Exhibit 1-A as the basis for his conclusion that the
Hermoso brothers were selling definite parcels of land is belied by the recitals of the
documents he himself introduced to the court, viz.,Exhibits 2 and 3. The document, Exhibit
1-A, if at all, could at best be considered as a scheme how the land could be divided in the
future among the heirs of Emilio Hermoso. Temporary in nature and subject to the
conformity of the 2 sets of co-owners to the land, the spouses Manuel Cruz and Consolacion
Hermoso Cruz had not participated in its execution. As it was, there was no sound basis for
Ben Palaganas or his principals to have assumed that Exhibit 1-A could be enforced against
the spouses Manuel Cruz and Consolacion Cruz and other third persons.
7

In overturning the aforequoted opinion of the trial court, the respondent court said
that:
In ascertaining whether the community still subsists, or that it had already been
extinguished by partition among the co-owners, it is not a mandatory requirement that the
property co-owned had been determined with unmistakable definiteness and clarity, as
where the property has been given a technical description after proper geodetic survey; it is
only required that the shares are properly determinable and the proper arrangements
thereof identifiable, as when nothing is left for the co-owners to do but to actually occupy
the portion pertaining to their share without any dispute arising over the extent of their
respective shares and the respective position of the parcels they are entitled to occupy.
Although OCT No. 0-1054 (M) reveals on its face the existence of co-ownership between
Consolacion Hermoso-Cruz and the Heirs of Emilio Hermoso, the fact that the shares are
separated by a stonewall (Cf. Exh. 1-A) unmistakably reveals the determinate or
determinable character of the property described under said certificate of title.
The court a quo subscribed to the theory that Exhibit 1-A is merely a scheme [of] how
the land could be divided in the future among the heirs of Emilio Hermoso. (g.v., Decision,
p. 5) Be that as it may, there is nothing more left to be done but the actual subdivision of
the property by a duly licensed geodetic engineer prior to the actual titling of their
respective shares. The corresponding shares of each of the heirs of Emilio Hermoso is not in
disputeone-fifth each; and their proper respective arrangements, one after another, had
likewise been included under Exhibit 1-A.
8

We agree with the trial courts findings that the records show co-ownership of
undivided property instead of definite portions of land having been assigned and
separately owned by each of the co-owners.
It should be stressed that it was Ben Palaganas, the vendee, who prepared the
Deed of Sale. The private respondents never had a hand in the preparation of the
document, even if the purchase was made in their behalf. The document states that
it is a Deed of Absolute Sale Over Two Undivided Shares to a Parcel of Land. Ben
Palaganas who prepared the deed of sale, knew and intended that the transaction
was over Two Undivided Shares of land. After all, as observed by the trial court,
Ben Palaganas was an accountant and was, prior to retirement from government
service, the head of a department in the Central Bank. Again, we quote the trial
court on this point, thus:
9

In the opinion of this court, he knew all along that what he or his principals were buying at
the time were the undivided shares, participation and interests of the vendors to the land.
His claim later in court that the shares of the vendors could already be identified and
segregated is difficult to believe. If his claim were true, Ben Palaganas with his experience
and educational background could have easily managed to execute the proper document as
a basis of an ultimate issuance of title in the name of the vendees. The document which he
relied upon which is Exhibit 1-A as the basis for his conclusion that the Hermoso brothers
were selling definite parcels of land is belied by the recitals of the documents he himself
introduced to the court, viz., Exhibits 2 and 3.
10

Ben Palaganas understanding and interpretation must necessarily prevail over that
of the private respondents who were not present during the transaction and whose
claims are colored by self-interest. In fact, the same document refers to the brothers
as co-owners of undivided shares in the disputed property.
11

It is plain from the deed of sale of two undivided shares that the absence of a
clear partition among the heirs of Emilio Hermoso complemented the similar
absence of a division of properties between the heirs and their aunt Consolacion
Hermoso Cruz. Two of the heirs were selling shares of undivided property which in
turn was also an undivided portion of a much larger undivided inheritance.
The alleged documents of exchange presented by the respondents to show a
partition with Consolacion would, to our mind, fall under the same category as the

1994 Agreement among the heirs of Emilio Hermoso, as we shall hereinafter

discuss.
The allegation about Consolacion having segregated and having given her 2/3
share of the inheritance viz-a-viz the 1/3 share of the heirs of Emilio Hermoso is
belied by the letter sent by husband Manuel Cruz in August 1981 to the Register of
Deeds of Bulacan which intimated his desire to buy the property of his co-owners in
his capacity as such. The spouses Cruz wanted to buy properties which they heard
had been alienated by their co-owners.
12

The absence of a deed of partition between Consolacion on the one hand, and the
heirs of Emilio on the other, is bolstered by the fact that the registered ownership is
that of the original owner over the entire property.
The deed of sale executed by the Hermoso brothers on January 30, 1980, referred
to undivided shares. Prior to the execution of this document, the Hermoso brothers
were parties to a non-notarized certification dated October 10, 1979, acknowledging
the receipt of P25,000.00 from the respondents, and wherein they were described as
co-owners with the petitioners.
13

14

The second paragraph of the certification states that We have agreed to sell,
transfer and convey unto the spouses Dr. Ceferino C. Palaganas and Azucena R.
Palaganas x x x all our shares, rights and interests over the above-described parcel
of land x x x. Note that the vendors who have described themselves as co-owners
agreed merely to sell their shares, rights and interests over the land. They were not
selling but were agreeing to sell. They did not sell a specific portion of land but
sold shares, rights and interests. It is to be further noted that as late as 1979 and
1980, Ben Palaganas and the Hermoso brothers, the parties to the deeds of sale,
were in complete agreement that there was a co-ownership.
15

The basis for the opinion of the respondent court that the co-ownership had been
terminated and the property was subdivided is the document dated May 24, 1974
denominated Agreement, executed by the heirs of Emilio Hermoso. The pertinent
portion of the agreement, which has been earlier cited and for emphasis, is
reproduced hereunder runs as follows:
2. That it is hereby agreed that for the convenience of all parties the following shall be
observed in the partition of the abovementioned properties: that the share of CLARITA P.

CARIN shall in all cases be adjacent to the properties adjudicated to CONSOLACION

HERMOSO CRUZ; then followed by the shares pertaining to DANILO CIRIACO
HERMOSO, VICTORINA P. HERMOSO, ROGELIO P. HERMOSO and AGUSTINITO P.
HERMOSO, respectively, except in the partition of the parcel of land situated in Calvario,
Meycauayan, Bulacan, which is the subject of the DEED OF EXCHANGE above-mentioned,
in which case the share pertaining to CLARITA P. CARIN shall be adjacent to the stonewall
that segregates the share of CONSOLACION HERMOSO CRUZ, then followed by the shares
pertaining to ROGELIO P. HERMOSO, DANILO CIRIACO HERMOSO, VICTORINA P.
HERMOSO, and AGUSTINITO P. HERMOSO, at the extreme end, respectively.

We agree with the trial court that this Agreement was merely a scheme as to how
the land would be subdivided in the future among the heirs. The owner of two-thirds
(2/3) of the property, Consolacion Hermoso, was not a party to the agreement. As a
majority owner of the undivided property, she could have demanded and insisted on
getting the particular portions which the respondent court ruled had already been
segregated in favor of the two vendors-brothers. The agreement among the heirs of
Emilio Hermoso as to shares following one another in a specific order cannot be
binding on the co-owner who owns 2/3 of the entire parcel but who was not a
signatory or party to the document.
The reference to a stonewall separating the shares of Consolacion Hermoso Cruz
from the share of Clarita Carin and the use thereof as reference point should not be
taken to mean that thereby a partition was effected among the heirs. The statement
of the Heirs of Emilio Hermoso that the 2/3 portion of the co-owner in relation to the
heirs of Emilio shall be adjacent to that of Clarita Carin followed by the shares of
Rogelio, Danilo, Victorina and Agustinito is a statement of a desire on how the land
should be subdivided. It cannot be said that it is a kind of division or partition of
property which clearly terminates co-ownership. The statement of Agustinito of an
assignment of shares cited by the respondent court was more of an expression on
how a future partition should be effected. In fact, the word positions was used in
addition to shares.
The documents evidencing the deed of sale are more authoritative in determining
the existence of co-ownership. The May 29, 1974 Agreement could not have been a
partition or division of co-owned properties because five and six years later, as can
be gleaned from the October 10, 1979 certification and from the January 13, 1980
Deed of Sale Over Two Undivided Shares To A Parcel of Land, both Ben Palaganas
who prepared the documents as vendee, and the brothers Agustinito and Danilo

who signed as vendors, were definite about the property being under co-ownership.
As late as August, 1981, Manuel Cruz, the husband of Consolacion, described the
parties as co-owners.
The private respondents, to buttress their stance that the standards of concrete
determinability and identifiability have been met in the case at bar, cited the case
of De la Cruz v. Cruz. We have read the case, regrettably the standards are not
present. In De la Cruz, the northern half of the property was assigned to the
plaintiff and the southern half to the defendant. In which case, such a division is
concrete and definite, which is not so in this case. Here, the majority co-owner,
Consolacion Hermoso, was not even consulted and the mention of names following
one another was apparently only a statement of who are the co-owners-heirs. It was
not a formal division or partition of the bigger property still to be validly partitioned
with Consolacion, owner of two-thirds (2/3) and later, among the co-heirs who owned
the remaining one-third (1/3). It is only a statement of a future action to be taken.
We, therefore, rule that the lot in question is still undivided property owned in
common by the co-heirs.
16

The second issue herein refers to the timeliness of exercising the right of legal
redemption. The petitioners question the respondent courts ruling that the right
had already prescribed when they exercised legal redemption.
The law apropos to this case is Article 1623 of the Civil Code, which provides:
Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within
thirty days from the notice in writing by the prospective vendor, or by the vendor, as the
case may be. The deed of sale shall not be recorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written notice thereof to all
possible redemptioners.
The right of redemption of co-owners excludes that of adjoining owners.

An identical provision governing co-heirs is found in Article 1088 of the Civil Code,
quoted hereunder:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor.

It is to be noted that Article 1623 stresses the need for notice in writing in three
other species of legal redemption namely: (1) redemption in a case where the share
of all the other co-owners or any of them are sold to a third person; (2) redemption
by owners of adjoining lands when a piece of rural land not exceeding one hectare in
area is alienated; and (3) redemption by owners of adjoining lands in the sale of a
piece of an urban land so small and so situated that the portion thereof cannot be
used for any practical purpose within a reasonable time, having been bought merely
for speculation.
17

18

19

In all the above-cited provisions of law, the interpretation thereof always tilts in
favor of the redemptioner and against the vendee. The purpose is to reduce the
number of participants until the community is terminated, being a hindrance to the
development and better administration of the property. Thus, we agree with the
trial court when it said:
20

The purpose of Article 1067 (of the old Civil Code, now Article 1088 of the present Civil
Code) is to keep strangers to the family out of a joint ownership, if, as is often the case, the
presence of outsiders be undesirable and the other heir or heirs be willing and in a position
to repurchase the share sold (De Jesus vs. Manglapus, 81 Phil. 144). While there should be
no question that an heir may dispose his right before partition (Rivero vs. Serrano[CA] 46
O.G. 642; Wenceslao vs. Calimon, 46 Phil. 906; Hernaez vs. Hernaez, 32 Phil. 214), a co-heir
would have had to pay only the price for which the vendee acquired it (Hernaez vs.
Hernaez, Ibid.).
21

It is a one-way street. It is always in favor of the redemptioner since he can compel

the vendee to sell to him but he cannot be compelled by the vendee to buy the
alienated property.
In this case, the land has not been validly partitioned between Consolacion
Hermoso, who owns 2/3 and the heirs of Emilio Hermoso who own 1/3 regardless of
the sentiments of Consolacion on the land in dispute may later have been. There has
been no subsequent distribution among the co-heirs of their specific shares. But
even granting that the heirs divided the properties owned in common in the May 29,
1974 Agreement, the right of legal redemption under Article 1620 of the Code,
would still subsist in their capacity as co-owners. For, if a co-owner has offered to
redeem the land within the period fixed by law, he has complied with the law. He
may bring the action to enforce the redemption after every offer has been rejected.
This is exactly the situation in this case.

The respondent court found that the petitioners already had notice of the sale in
January 1984. Considering that the letter, coursed through Atty. Sandico, offering
to redeem the property was made only in September 1984, the appellate court was
of the view that the action to enforce redemption had prescribed. A perusal of the
record, however, shows that after Ben Palaganas had confirmed the transaction, the
petitioners confronted the two brothers who were compelled to admit they have sold
their shares. The vendor-brothers never took the initiative of informing their coheirs in writing that they have alienated their shares. As found by the trial court,
the petitioners immediately started negotiations with Ben Palaganas to redeem the
alienated share. At this time, the payment for the shares had not yet been
completed neither by Ben Palaganas nor by the private respondents.
22

The observation of the trial court on this issue is enlightening, thus:

It is evident from the evidence in the record that the vendors, i.e.,the Hermoso brothers,
Agustinito and Danilo had not notified in writing or even verbally their co-heirs which
include the plaintiffs herein before or during the execution of the sale of their shares to Ben
Palaganas or the defendants. The transaction of these two brothers had with Ben Palaganas
was kept out of the knowledge of their mother and sister, the plaintiffs herein. Their need
for funds must have been urgent and it was obvious that their mother if advised what they
intended to do with the land could have objected to it. This reaction from the plaintiffs was
easily expected because when Agustinito Hermoso sold his share to Ben Palaganas in July
1979, the same was aborted by the plaintiff, Clarita Carin. On this regard, Agustinito
Hermoso, one of the two third party defendants testified:

Did you inform your mother and sister about the sale
of these properties?

During that time?

Yes.

I did not.
xxx

xxx

xxx

ATTY. GARCIA:
Q

Do you know when, for the first time, did your

mother and your sister came to know of this sale?

Personally, I do not know when they came upon that

knowledge.

(TSN, 5-22-86, pp. 10-11)

ATTY. HERMOSO:
Q

Did you ever consult your mother or your sister of

your desire to sell the property?

No, sir.

Why not?

Because I personally believe that what we were

selling then were but our right to the said property.

How about your brother Danilo Hermoso, did he

inform your mother and sister about the sale of the
property?
xxx

xxx

xxx

Danilo Hermoso, my brother, told me that he did not

inform our mother and our sister about his desire to
sell his share on the property.

(TSN, 5-21-87, pp. 12-13 & 15)

ATTY. OSORIO:
Q

How about the second sale which included the share

of your brother?

No, we did not inform our mother regarding our

desire to sell our respective properties, sir.

Article 1088 of the Civil Code is applicable in the instant case. But whether it is under this
article or Article 1623 of same Code, the period of 30 days has not began to run.
When the plaintiffs had become certain after Ben Palaganas had confirmed the
transaction that there was such a sale covering the shares of the third party defendants
(tsn, 6-19-86, pp. 20-21) sometime in 1984, the vendors had to admit to the herein plaintiffs
the fact of sale. Plaintiffs immediately started negotiations with Ben Palaganas to redeem
the shares sold by the vendors. Ben Palaganas or the defendants after all, had not
completely paid the whole consideration of the sale by that time. Ben Palaganas did not
want to give money anymore to the vendors as the amounts already paid had amounted to
P401,500.00 (see footnote of Ben Palaganas in Exhibit 10). The several payments made to
the vendors are evidenced by Exhibits 3, 4, 5, 6, 7, 8, 9 and 10. Ben Palaganas acting for
himself or for the defendants refused the offer of the plaintiffs to redeem the land, claiming
that the rights to the land of his principals to the vendors shares to the land was already
established. The formal demand to redeem was sent by the plaintiffs through counsel to the
defendants (Exhibit B, p. 203, record). Still the defendants did not respond accordingly.
They had instead constructed a building within the land covered by the title and in a place
therein, relying on the temporary scheme of partition marked as Exhibit 1-a. To the
plaintiffs, there was no other recourse except to go to court. And they did by filing this
complaint on October 4, 1984 with the court.
23

Ben Palaganas confirmed the offer to redeem. When questioned why the private
respondents agreed to the return of the sold shares in 1979 but refused to do so in
1980, this witness waxed sentimental and gave a lengthy narration of the debt of
gratitude his family owed to the Hermoso family. Ben Palaganas related that the
patriarch Marcos Hermoso allowed the Palaganas clan to build their house on his

land and to stay there for 27 years without paying rent. And, when three sons and
one daughter of the Palaganases were in medical school, and the family ran out of
funds, Marcos Hermoso extended financial assistance without interest and payable
only when the Palaganases could afford to pay. Out of respect for the Hermoso
family, Ben Palaganas related, the private respondents agreed to the cancellation of
the 1979 sale. However, in 1984 when the offer to redeem the share sold in 1980 was
made, the Palaganas clan no longer wanted to resell the property. Considering that
over the intervening years, they had paid on a piecemeal basis the amount of
P400,000.00 to the two brothers and out of self-respect refused to agree to the
redemption. But since the property purchased had already increased in value not
only self-respect but apparently self-interest had entered the picture.
It was error for the respondent court to rule that the right of the petitioner to
redeem the alienated share had long prescribed. This finding fails to take into
account that the period of legal redemption is not a prescriptive period. It is a
condition precedent to the exercise of the right of redemption. It is a period set by
law to restrict the right of the person exercising the right of legal redemption. It is
not one of prescription.
24

The written notice required by Article 1623 of the Civil Code was enacted to
remove all doubts and uncertainty that the alienation may not be definite. The coowners must know with certainty the circumstances of the sale by his co-owners and
the terms and the validity of the alienation. Only after said knowledge is the coowner required to exercise the right of redemption given to him by law.
25

While the law requires that the notice must be in writing, it does not state any
particular form thereof, so long as the reasons for a written notice are present. The
records of the case show that the sale of the brothers share was deliberately hidden
from the petitioners. For sometime after the sale, the petitioners were ignorant
about its execution. When they somehow heard rumors about it, they had to take
one step after another to find out if the information was true.
It is to be noted that in the case at bar, not only were the petitioners intentionally
kept in the dark for several years but even after knowledge of the act of the two
brothers, they still had difficulty in ascertaining and confirming its veracity. Far
from giving the notice required by law or giving information on the history and
details of the sale, Agustinito and Danilo gave the petitioners the run-around until

the brothers were practically forced to admit it and the petitioners immediately
went to see Ben Palaganas. In their dialogue with Ben Palaganas, petitioners
offered to redeem the property, but this time, unlike the first, the offer was rejected.
When the petitioners offered to redeem within the period fixed by law, they
complied with the condition precedent to the exercise of their right. The filing of an
action to enforce the redemption is not the determining point in time. In Conejero,
supra, this Court ruled that a consignation of the tendered price is not necessary as
long as a valid tender is present. However, the offer to redeem is indispensable.
Considering the indignation and the wrath of the petitioners directed at the two
brothers for their acts of alienating an undivided portion of the property, despite the
earlier redemption of the sale sold in 1979, there can be no question about the
willingness and capability of the petitioners to buy back the shares sold in 1980.
26

In applying Article 1623 of the Civil Code on the exercise of legal redemption to
certain facts, the interpretation must be in favor of justice and equity. This Court
explainedx x x. We test a law by its result. A law should not be interpreted so as
not to cause an injustice x x x. There are laws which are generally valid but may
seem arbitrary when applied in a particular case because of its peculiar
circumstances. We are not bound to apply them in slavishobedience to their
language.
27

Whether it is the vendees who will prevail as in theAlonzo doctrine, or the

redemptioners as in this case, the righting of justice is the key to the resolution of
the issues.
The standards and conditions of legal redemption provided under Article 1623 of
the Civil Code have not been met in this petition. Furthermore, there is the fact that
justice and equity, as the law provides, are also on the side of the petitioners. As we
said, the righting of an injustice is the key to the resolution of this case and thus
would be the end result of our decision.
The two brothers, Agustinito and Danilo Hermoso, were still students when they
sold their shares in their inheritance. In 1979, Agustinito was already a graduating
student of law. According to the trial court, it was sometime in October of that year,
he and his younger brother Danilo separately needed cash which they could not
easily secure from their mother, Clarita Carin, one of the plaintiffs

herein. However, if they were strapped of cash, considering that their allowances
were insufficient for their needs, they could have pleaded with their mother for
additional funds instead of selling the still undivided property without her
knowledge and against her known will. They knew that their mother was against
the very idea of selling a portion of the undivided property considering that
Consolacion Hermoso cancelled the prior sale made by them in July 1979 by
redeeming the property. From the records, one gets the impression that the two
brothers, Agustinito and Danilo, were irresponsible and self-centered, failing to
consider the wishes of their mother.
28

Ben Palaganas, who represented the respondents in a transaction, admitted a

debt of gratitude to the Hermoso family. Yet, apparently he took advantage of the
situation. Through several years he doled out funds in installments to the two
brothers in partial payment of the disputed property until the indebtedness had
reached an amount that Agustinito and Danilo had no other recourse but to sell
their inheritance and practically compelled them to execute the deed of sale in
dispute.
Again, we reiterate the salient fact that Clarita Carin, their mother, and Victoria
Hermoso, their sister, were kept in the dark about the sale. Considering the factual
background of this case, the honorable and expected step for the Palaganas was to
inform the petitioners about the action taken by Agustinito and Danilo. Instead, as
the record reveals the parties to the sale concealed the transaction from petitioners
for four (4) years. It was only after hearing rumors about the sale when petitioners
started to investigate and search for evidence to confirm their hearsay knowledge
about the transaction. Even then, the two brothers and the Palaganases gave them
a hard time.
The Palaganas clan knew all along the strong feelings of the petitioners against
the alienation of share in the still undivided property. This was their second
attempt to buy the property. As a matter of fact, they knew that in 1979 when the
land was first sold, the petitioners immediately took steps to cancel the sale upon
discovery thereof. In 1980, the private respondents and Ben Palaganas still did
exactly what the petitioners vigorously opposed and did not want to happen. They
also hid the sale from the petitioners until confronted with facts that they could no
longer hide or deny. The impressions of the trial judge is worth quoting hereunder
thus:

It is obvious that the acts of Ben Palaganas or his principals would be considered as done
in bad faith. Ben Palaganas should not be allowed to say that he had relied merely on the
impressions given by the vendors, the Hermoso brothers. Aside from what was obvious in
the documents executed by the Hermoso brothers, he should have inquired or verified said
impressions made by the vendors from the plaintiffs or any of the co-owners to the property.
The evidence in the record shows that it was their intense desire to own a property in the
place where the land is located because of the business potentials thereat stated herein
above. They did not exercise the diligence of a good father of a family because they did not
want to, what with their experience with the first transaction affecting the share of the
third party defendant, Agustinito Hermoso which took place only in July, 1979 a few
months earlier to the transaction in question.
29

There can be no doubt that the Palaganas clan were in bad faith at the time they
bought the disputed property from the Hermoso brothers. We cannot thus close our
eyes to the injustice which would befall the petitioners considering that this is not
the first time that they have expressed their desire to redeem the property sold by
the Hermoso brothers. Under the circumstances, it is just and equitable to rule in
favor of the exercise of legal redemption.
WHEREFORE, the assailed decision of the Court of Appeals should be, as it is
hereby, REVERSED and SET ASIDE. The decision of the Regional Trial Court
dated February 15, 1990 is hereby REINSTATED.
SO ORDERED.
Bellosillo (Chairman), Puno and Mendoza, JJ.,concur.
Judgment reversed and set aside, that of the court a quo reinstated.
Notes.Where the right to redeem is exercised through judicial action within
the reglementary period, the formal offer to redeem, accompanied by a bona fide
tender of the redemption price, while proper, may be unessentialthe filing of the
action itself is equivalent to a formal offer to redeem. (Lee Chuy Realty Corporation
vs. Court of Appeals,250 SCRA 596 [1995])
A third person, within the meaning of Article 1620 of the Civil Code (on the right
of legal redemption of a co-owner) is anyone who is not a co-owner. (Pilapil vs. Court
of Appeals, 250 SCRA 566 [1995])

o0o

G.R. No. 26855. April 17, 1989.

FRANCISCO GARCIA, PAZ GARCIA, and MARIA GARCIA, petitioners, vs. JOSE
CALALIMAN, PACIENCIA TRABADILLO, & HON. COURT OF APPEALS, Third
Division, respondents.
Civil Law; Wills and Succession; Partition and Distribution of Estate; Sale of
Hereditary Rights Before Partition; Legal Redemption; The written notice required under
Art. 1088 of the Civil Code for purposes of legal redemption is indispensable.The issue
has been squarely settled in the case of Castillo v. Samonte, where this Court observed:
Both the letter and spirit of the new Civil Code argue against any attempt to widen the
scope of the notice specified in Article 1088 by including therein any other kind of notice,
such as verbal or by registration. If the intention of the law had been to include verbal
notice or any other means of information as sufficient to give the effect of this notice, then
there would have been no necessity or reasons to specify in Article 1088 of the New Civil
Code that the said notice be made in writing for, under the old law, a verbal notice or
information was sufficient (106 Phil. 1023 [1960]). In the above-quoted decision the Court
did not consider the registration of the deed of sale with the Register of Deeds sufficient
notice, most specially because the property involved was unregistered land, as in the instant
case. The Court took note of the fact that the registration of the deed of sale as sufficient
notice of a sale under the provision of Section 51 of Act No. 496 applies only to registered
lands and has no application whatsoever to a case where the property involved is,
admittedly, unregistered land. Consistent with aforesaid ruling, in the interpretation of a
related provision (Article 1623 of the New Civil Code) this Court had stressed that written
notice is indispensable, actual knowledge of the sale acquired in some other manner by the
redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by
the Code, to remove all uncertainty as to the sale, its terms and its validity, and to quiet
any doubt that the alienation is not definitive. The law not having provided for any

alternative, the method of notifications remains exclusive, though the Code does not
prescribe any particular form of written notice nor any distinctive method for written
notification of redemption (Conejero et al. v. Court of Appeals et al. 16 SCRA 775 [1966];
Etcuban v. Court of Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No. 75069,
April 15, 1988).
Same; Same; Same; Same; Same; Same; Same; In the absence of a written notification
of the sale by the vendors, the 30-day period provided in Art. 1088 has not even begun to
run.Petitioners fault the appellate court in not awarding them damages, attorneys fees
and costs. After finding in favor of respondent spouses and against petitioners herein it is
untenable for petitioners to expect that the appellate court would award damages and
attorneys fees and costs. However as already discussed, petitioners have not lost their right
to redeem, for in the absence of a written notification of the sale by the vendors, the 30-day
period has not even begun to run. Petitioners clearly can claim attorneys fees for bad faith
on the part of respondents, first, for refusing redemption, and secondly for declaring the
entire land as theirs, although they knew some heirs had not sold their shares.

PETITION for certiorari to review the decision of the Court of Appeals. Concepcion,
Jr., J.
The facts are stated in the opinion of the Court.
Jose Gaton for petitioners.
Ricardo Q. Castro for respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals
in CA G.R. No. 22179-R, promulgated on August 31, 1966, reversing the decision of
the Court of First Instance of Iloilo in Civil Case No. 3489, and rendering a new
one dismissing the complaint of petitioner herein, the dispositive portion of which
reads as follows:
**

***

WHEREFORE, the judgment appealed from is hereby reversed and another entered,
dismissing plaintiffs complaint. No pronouncement as to costs. (p. 29 Rollo)

The facts of the case are as follows:

On February 11, 1946, one Gelacio Garcia died intestate, leaving a parcel of
unregistered land about 372 sq. meters, situated in the Municipality of Tubungan,
Province of Iloilo (Exhibits, p. 19). On his death the property was inherited by his
nephews, nieces, grandnephews who are the descendants of his late brothers, Pedro,
Simeon, Buenaventura and Marcos (TSN, Sept. 6, 1956, p. 3).
On December 3, 1954, the heirs, Juanita Bertomo, Joaquin Garcia, Porfirio
Garcia, Dioscoro Garcia, Flora Garcia, Consolacion Garcia, Remedios Garcia,
Trinidad Garcia, Baltazar Garcia signed a document entitled, Extrajudicial
Partition and Deed of Sale (Exhibits, p. 19). The parcel of land subject of the
document was described as follows:
A parcel of residential land, about 372 square meters, 1st class, identified as Assessors Lot
No. 107, Block No. 8, bounded on the north by Paz and Federal Streets; on the south by
Tabaosares and Antonia Tacalinar; on the East by Piedad Street; and on the West by Paz
Street. This parcel of land has no concrete monuments to indicate its boundaries but there
are dikes, stones and temporary fences used as landmarks and boundary signals. This
parcel of land is covered by Tax Declaration No. 1149, S. of 1947, in the name of Gelacio
Garcia, and its assessed value of P110.00. (p. 19, Exhibits)

The last paragraph of the same document states:

That for and in consideration of the sum of FIVE HUNDRED PESOS (P500.00), Philippine
Currency, to us in hand paid by the spouses, JOSE CALALIMAN, and PACIENCIA
TRABADILLO, all of legal age, Filipinos and residents of the municipality of Tubungan,
province of Iloilo, Philippines, receipt of which we hereby aknowledged and confessed to our
entire satisfaction, do by these presents, cede, sell, convey and transfer the above-described
parcel of land unto the said spouses, Jose Calaliman and Paciencia Trabadillo, their heirs,
successors and assigns free from all liens and encumbrances whatsoever. (p. 19, Exhibits)

The document was inscribed in the Register of Deeds of Iloilo on February 24, 1955,
Inscription No. 20814, Page 270, Vol. 64 (Exhibits, p. 20).
On December 17, 1954 another group of heirs, Rosario Garcia, Margarita Garcia,
Dolores Rufino, Resurreccion Tagarao, Serafin Tagarao, Buenaventura Tagarao,
Fortunata Garcia and Simeon Garcia, all residents of Isabela, Negros Occidental,
also sold to the spouses Jose Calaliman and Paciencia Trabadillo through their
attorney-in-fact, Juanito Bertomo, their shares, rights, interest and participation in
the same parcel of land. The Deed of Sale was registered in the Register of Deeds of

Iloilo also on December 22, 1954, Inscription No. 20640, p. 88, Vol. 64 (Exhibits, p.
2122).
On May 7, 1955 the heirs Francisco Garcia, Paz Garcia, and Maria Garcia,
petitioners herein, filed against the spouses Jose Calaliman and Paciencia
Trabadillo, private respondents herein, Civil Case No. 3489 with the Court of First
Instance of Iloilo, for legal redemption of the 3/4 portion of the parcel of land
inherited by the heirs from the late Gelacio Garcia, which portion was sold by their
co-heirs to the defendants. In the complaint (Record on Appeal, p. 4) plaintiffs
alleged, among others:
1. 5.That, plaintiffs co-owners had never offered for sale their interest and shares
over the said land to the plaintiffs prior to the sale in favor of the defendants, nor
given notice of such intention on their part; and that, no notice in writing has been
given by said co-owners to the plaintiffs of the said sale, such that, plaintiffs came
to learn of it only from other source;
2. 6.That, plaintiffs would have purchased the interest and shares of their coowners had the latter offered the same to them

1. prior to the sale thereof to the defendants; and that, within 30 days after learning of
the sale made to the defendants under annexes A, B and B-1, plaintiffs made
repeated offer to the defendants to allow them to redeem said interest and shares
acquired by the defendants in accordance with the right granted to the plaintiffs by
law in such a case, offering a reasonable price thereof of P300 taking into
consideration the fact that the defendants had acquired only 3/4 of the land of 372
square meters more or less, in area with assessed value of P110 and a fair market
value of 372 at P1 per square meter, the price actually obtaining in the locality at
the time of the sale thereof under Annexes A, B and B-1; however, the defendants
refused and have until the present refused to grant redemption thereof giving no
reason why other than challenging the plaintiffs to bring their case in court:
2. 7.That, the circumstances surrounding the transaction between the defendants
and plaintiffs co-owners, the vendors, were such that defendants could not have
actually paid nor the vendors actually received the total price of P800 as stipulated
in the deeds Annexes A, B and B-1, while the said price fixed is grossly excessive
and highly exaggerated and prohibitive for evidently ulterior motive:
3. 8.That, the land herein described is an ancestral property and plaintiffs have
actually a house standing thereon and having lived thereon ever since, such that,

the defendants refusal to allow redemption thereof has caused the plaintiffs mental
torture, worry and anxiety, forcing them to litigate and retain services of counsel,
therefore, plaintiffs demand against the defendants P500 for moral damage, P500
for exemplary damage, P300 for attorneys fees, aside from actual expenses
incurred; and, furthermore, P5 monthly as reasonable value of defendants
occupation of a portion of the premises counting from the filing of this complaint.

They prayed that the trial court render judgment:

1. 1.Declaring the plaintiffs to be entitled to redeem from the defendants for the
price of P300 or for such reasonable price as may be determined by this Honorable
Court the interest and shares over the land described in this complaint of plaintiffs
co-owners, Joaquin, Porfirio, Flora, Dioscoro, Consolacion, Remedios, Trinidad,
Baltazar, Rosario, Margarita, Dolores, Fortunata and Simon, all surnamed Garcia,
and Resurreccion, Serafin and Buenaventura, all surnamed Tagarao, sold by them
to the defendants under the deeds of sale

1. Annexes A, B and B-1 of this complaint; and ordering the defendants to execute
the proper instrument of reconveyance or redemption thereof in favor of the
plaintiffs; and, ordering them to vacate the premises;
2. 2.Condemning the defendants to pay to the plaintiffs P500 for moral damage;
P500 for exemplary damage; P300 for attorneys fees and actual expenses incurred;
P5 monthly from the filing of this complaint as reasonable value of defendants
occupation of a portion of the land; the costs of this action; and, for such other relief
and remedy as may be legal, just and equitable.

On the other hand, the defendants, private respondents herein, alleged in their
answer the following special affirmative defenses (Record on Appeal, p. 14):
1. 1.That plaintiffs have no cause of action against the herein defendants;
2. 2.That due notices in writing have been sent to plaintiff Francisco Garcia at his
residence at 2875 Felix Huertas St., Sta. Cruz, Manila, sometime last June 1953, in
which plaintiff Francisco Garcia was informed of his co-owners signified intention
to sell their shares, and likewise, the other plaintiffs Paz and Maria Garcia were
personally notified of the same hence, for that reason, they are now barred to claim
legal redemption of the land in question, having filed their belated claim too late.

The trial court rendered judgment on September 12, 1957 in favor of the plaintiffs
(Record on Appeal, p. 15), the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered:
1. (a)Sentencing the defendants to resell the property to the plaintiffs for P800.00
which is the total consideration of the two deeds of sale Exhibits A and B;
2. (b)In the event that the defendants fail to execute the deed of resale within ten days
from the date this decision becomes final, the Clerk of Court is hereby ordered to
execute the corresponding deed pursuant to the provisions of Section 10 of Rule 39
of the Rules of Court;
3. (c)Without pronouncement as to costs.

On October 14, 1957 plaintiffs filed their notice of Appeal predicated on (a) failure
of the Court to adjudge the real or reasonable price of the sale or otherwise the
redemption value thereof; (b) failure of the Court to adjudge damages including
attorneys fees in favor of the plaintiffs and the costs. (Record on Appeal, p. 18).
Defendants filed their own notice of appeal on October 15, 1957 (Record on
Appeal, p. 19).
On appeal the Court of Appeals in a decision promulgated on August 31, 1966
reversed the decision of the trial court and rendered another one dismissing
plaintiffs complaint with no pronouncement as to costs (Rollo, p. 22).
The instant petition for review by certiorari was filed with the Court on
December 12, 1966 (Rollo, p. 11). The Court at first dismissed the petition in a
resolution dated December 22, 1966, for insufficient supporting papers (Rollo, p. 35)
but reconsidered the said Resolution of Dismissal later in a Resolution dated
February 8, 1967 (Rollo, p. 97) as prayed for in a motion for reconsideration filed by
petitioners on February 1, 1967 (Rollo, p. 38). The same Resolution of February 8,
1967 gave due course to the petition.
The Brief for the Petitioners was filed on June 9, 1967 (Rollo, p. 106); the Brief
for the Respondents was received in the Court on August 31, 1967 (Rollo, p. 119).

Petitioners having manifested they would not file reply brief on September 14,
1967 (Rollo, p. 122) the Court considered the case submitted for decision, in a
Resolution dated September 21, 1967 (Rollo, p. 124).
Petitioners assign the following errors:
1. I.THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE
30-DAY PERIOD PRESCRIBED IN ARTICLE 1088 OF THE NEW CIVIL CODE
FOR A CO-HEIR TO EXERCISE HIS RIGHT OF LEGAL REDEMPTION, HAD
ALREADY ELAPSED WHEN THE HEREIN PLAINTIFFS FILED THE ACTION
ON MAY 7, 1955.
2. II.THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT
THERE WAS NO OFFER TO REIMBURSE THE DEFENDANTS FOR THE
PORTION OF THE LAND IN QUESTION SOLD TO THEM BY THE CO-HEIRS
OF THE PLAINTIFFS.

1. III.THE HONORABLE COURT OF APPEALS ERRED IN REVERSING THE

JUDGMENT OF THE LOWER COURT, AND IN NOT ADJUDGING DAMAGES,
ATTORNEYS FEES AND COSTS IN FAVOR OF THE PLAINTIFFS.
(Brief for the Petitioners, p. 1)

There is no question that the provision of law applicable in the instant case is Art.
1088 of the New Civil Code (Art. 1067, Old Civil Code) as the matter concerns heirs
and inheritance not yet distributed (Wenceslao v. Calimon, 46 Phil. 906 [1923]). Art.
1088 states:
Article 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor. The main issue
is whether or not petitioners took all the necessary steps to effectuate their exercise of the
right of legal redemption within the period fixed by Art. 1088 of the Civil Code.

It is undisputed that no notification in writing was ever received by petitioners

about the sale of the hereditary interest of some of their co-heirs in the parcel of
land they inherited from the late Gelacio Garcia, although in a letter dated June 23,
1953 petitioner Francisco Garcia wrote one of his co-heirs, Joaquin Garcia, who is
an uncle of petitioners, proposing to buy the hereditary interests of his co-heirs in

their unpartitioned inheritance, (Exhibit, p. 3). Although said petitioner asked that
his letter be answered in order that I will know the results of what I have
requested you, (Exhibit, p. 14) there is no proof that he was favored with one.
Petitioners came to know that their co-heirs were selling the property on
December 3, 1954 when one of the heirs, Juanito Bertomo, asked Petitioner Paz
Garcia to sign a document prepared in the Municipality of Tubungan because the
land they inherited was going to be sold to private respondent, Jose Calaliman
(TSN, September 6, 1957, p. 60). The document mentioned by petitioner Paz Garcia
could be no other than the one entitled Extra-Judicial Partition and Deed of Sale
dated December 3, 1954 as it is in this document that the name of Paz Garcia,
Maria Garcia and Amado Garcia appear unsigned by them (Exhibits, p. 19).
It is not known whether the other heirs whose names appear in the document
had already signed the document at the time Paz Garcia was approached by Juanito
Bertomo. Paz Garcia, however, testified that she immediately informed her brother
Francisco that Juanita Bertomo wanted to sell the land to Jose Calaliman (TSN,
September 6, 1957, p. 62). On December 26, 1954 he wrote respondents giving them
notice of his desire to exercise the right of legal redemption and that he will resort
to court action if denied the right (Exhibits, p. 8). The respondents received the
letter on January 13, 1955 but petitioner Francisco Garcia did not get any answer
from them. Neither did respondents show him a copy of the document of sale nor
inform him about the price they paid for the sale when he went home to Tubungan
from Manila sometime in March 1955 and went to see the respondent spouse about
the matter on March 24, 1955 (TSN, September 6, 1957, p. 18).
Because of the refusal of respondent Jose Calaliman to show him the document of
sale or reveal to him the price paid for the parcel of land, petitioner Francisco
Garcia went to the Office of the Register of Deeds on the same date, March 24, 1955
and there found two documents of sale regarding the same parcel of land (TSN, Ibid,
p. 19).
Petitioners filed the case for legal redemption with the trial court on May 7, 1955.
Respondents claim that the 30-day period prescribed in Article 1088 of the New
Civil Code for petitioners to exercise the right to legal redemption had already
elapsed at that time and that the requirement of Article 1088 of the New Civil Code
that notice must be in writing is deemed satisfied because written notice would be

superfluous, the purpose of the law having been fully served when petitioner
Francisco Garcia went to the Office of the Register of Deeds and saw for himself,
read and understood the contents of the deeds of sale (Brief for respondents, p. 6).
The issue has been squarely settled in the case ofCastillo v. Samonte, where this Court observed:
Both the letter and spirit of the new Civil Code argue against any attempt to widen the scope of the notice
specified in Article 1088 by including therein any other kind of notice, such as verbal or by registration. If the
intention of the law had been to include verbal notice or any other means of information as sufficient to give the
effect of this notice, then there would have been no necessity or reasons to specify in Article 1088 of the New
Civil Code that the said notice be made in writing for, under the old law, a verbal notice or information was
sufficient (106 Phil. 1023[1960]).

In the above-quoted decision the Court did not consider the registration of the deed of sale with the
Register of Deeds sufficient notice, most specially because the property involved was unregistered
land, as in the instant case. The Court took note of the fact that the registration of the deed of sale as
sufficient notice of a sale under the provision of Section 51 of Act No. 496 applies only to registered
lands and has no application whatsoever to a case where the property involved is, admittedly,
unregistered land.
Consistent with aforesaid ruling, in the interpretation of a related provision (Article 1623 of the
New Civil Code) this Court had stressed that written notice is indispensable, actual knowledge of the
sale acquired in some other manners by the redemptioner, notwithstanding. He or she is still entitled
to written notice, as exacted by the Code, to remove all uncertainty as to the sale, its terms and its
validity, and to quiet any doubt that the alienation is not definitive. The law not having provided for
any alternative, the method of notifications remains exclusive, though the Code does not prescribe
any particular form of written notice nor any distinctive method for written notification of
redemption (Conejero et al. v. Court of Appeals et al., 16 SCRA 775 [1966]; Etcuban v. Court of
Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No. 75069, April 15, 1988).
Petitioners fault the appellate court in not awarding them damages, attorneys fees and costs.
After finding in favor of respondent spouses and against petitioners herein it is untenable for
petitioners to expect that the appellate court would award damages and attorneys fees and costs.
However as already discussed, petitioners have not lost their right to redeem, for in the absence of a
written notification of the sale by the vendors, the 30-day period has not even begun to run.
Petitioners clearly can claim attorneys fees for bad faith on the part of respondents, first, for refusing
redemption, and secondly for declaring the entire land as theirs, although they knew some heirs had
not sold their shares.

PREMISES CONSIDERED, the decision of the Court of Appeals is REVERSED and the decision
of the trial court is REINSTATED with the modification that petitioners be awarded damages,
attorneys fees and costs in the amount prayed for.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmientoand Regalado, JJ., concur.
Decision reversed.
Note.No legal redemption on the sale of property for payment of debts of a deceased person.
Art. 1088 does not justify legal redemption, as it refers to sale of hereditary rights, not to specific
properties, for payment of debts of decedents estate. (Plan vs. Intermediate Appellate Court,135
SCRA 270.)

No. L-72873. May 28, 1987.

CARLOS ALONZO and CASIMIRA ALONZO, petitioners,vs. INTERMEDIATE

APPELLATE COURT and TECLA PADUA, respondents.
Statutes; We test a law by its results. A law should not be interpreted so as to cause an
injustice.But as has also been aptly observed, we test a law by its results; and likewise, we
may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the
first concern of the judge should be to discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in such a way as to cause injustice as
this is never within the legislative intent. An indispensable part of that intent, in fact, for
we presume the good motives of the legislature, is to render justice.
Same; Law and justice are inseparable. Laws must be applied in consonance with
justice.Thus, we interpret and apply the law not independently of but in consonance with
justice. Law and justice are inseparable, and we must keep them so. To be sure, there are
some laws that, while generally valid, may seem arbitrary when applied in a particular case
because of its peculiar circumstances. In such a situation, we are not bound, because only of
our nature and functions, to apply them just the same, in slavish obedience to their
language. What we do instead is find a balance between the word and the will, that justice
may be done even as the law is obeyed.
Same; Judges must not unfeelingly yield like robots to the literal command of the law.
As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is
worded, yielding like robots to the literal command without regard to its cause and

consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are
warned, by Justice Holmes again, "where these words import a policy that goes beyond
them." While we admittedly may not legislate, we nevertheless have the power to interpret
the law in such a way as to reflect the will of the legislature. While we may not read intothe
law a purpose that is not there, we nevertheless have the right to read out of it the reason
for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that
vivifieth," to give effect to the lawmaker's will.
Same; Property; Prescription; Succession; Redemption; Where co-heirs filed action for
redemption of co-heir's sold share only after thirteen years had elapsed from the sale, they
are deemed to have been actually informed thereof sometime during those years although no
written notice of sale was given to them.While we do not here declare that this period
started from the dates of such sales in 1963 and 1964, we do say that sometime between
those years and 1976, when the first complaint for redemption was filed, the other co-heirs
were actually informed of the sale and that thereafter the 30-day period started running
and ultimately expired. This could have happened any time during the interval of thirteen
years, when none of the co-heirs made a move to redeem the properties sold. By 1977, in
other words, when Tecla Padua filed her complaint, the right of redemption had already
been extinguished because the period for its exercise had alr eady expired.
Same; Same; Same; Same; Same; Judgments; The Court's deviation from the strict
letters of Art. 1088 NCC on giving of written notice to co-heirs of the sale of an heir's share is
not being abandoned. The ruling here should be deemed an exception due to peculiar
circumstances of this case.We realize that in arriving at our conclusion today, we are
deviating from the strict letter of the law, which the respondent court understandably
applied pursuant to existing jurisprudence. The said court acted properly as it had no
competence to reverse the doctrines laid down by this Court in the above-cited cases. In fact,
and this should be clearly stressed, we ourselves are not abandoning the De Conejero and
Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in
view of the peculiar circumstances of this case.

PETITION to review the decision of the Intermediate Appellate Court.

The f acts are stated in the opinion of the Court.
Perpetuo L.B. Alonzo for petitioners.
Luis R. Reyes for private respondent.
CRUZ, J.:

The question is sometimes asked, in serious inquiry or in curious conjecture,

whether we are a court of law or a court of justice. Do we apply the law even if it is
unjust or do we administer justice even against the law? Thus queried, we do not
equivocate. The answer is that we do neither because we are a court both of law and
of justice. We apply the law with justice for that is our mission and purpose in the
scheme of our Republic. This case is an illustration.
Five brothers and sisters inherited in equal pro indivisoshares a parcel of land
registered in the name of their deceased parents under OCT No. 10977 of the
Registry of Deeds of Tarlac.
1

On March 15, 1963, one of them, Celestino Padua, transferred his undivided share
of the herein petitioners for the sum of P550.00 by way of absolute sale. One year
later, on April 22, 1964, Eustaquia Padua, his sister, sold her own share to the same
vendees, in an instrument denominated "Con Pacto de Retro Sale," for the sum of
P440.00.
2

By virtue of such agreements, the petitioners occupied, after the said sales, an
area corresponding to two-fifths of the said lot, representing the portions sold to
them. The vendees subsequently enclosed the same with a fence. In 1975, with their
consent, their son Eduardo Alonzo and his wife built a semi-concrete house on a
part of the enclosed area.
4

On February 25, 1976, Mariano Padua, one of the five coheirs, sought to redeem
the area sold to the spouses Alonzo, but his complaint was dismissed when it
appeared that he was an American citizen. On May 27, 1977, however, Tecla Padua,
another co-heir, filed her own complaint invoking the same right of redemption
claimed by her brother.
5

The trial court also dismiss this complaint, now on the ground that the right
had lapsed, not having been exercised within thirty days from notice of the sales in
1963 and 1964. Although there was no written notice, it was held
that actual knowledge of the sales by the co-heirs satisfied the requirement of the
law.
**

In truth, such actual notice as acquired by the co-heirs cannot be plausibly

denied. The other co-heirs, including Tecla Padua, lived on the same lot, which
consisted of only 604 square meters, including the portions sold to the

petitioners. Eustaquia herself, who had sold her portion, was staying in the same
house with her sister Tecla, who later claimed redemption. Moreover, the
petitioners and the private respondents were close friends and neighbors whose
children went to school together.
8

10

It is highly improbable that the other co-heirs were unaware of the sales and that
they thought, as they alleged, that the area occupied by the petitioners had merely
been mortgaged by Celestino and Eustaquia. In the circumstances just narrated, it
was impossible for Tecla not to know that the area occupied by the petitioners had
been purchased by them from the other co-heirs. Especially significant was the
erection thereon of the permanent semi-concrete structure by the petitioners' son,
which was done without objection on her part or of any of the other co-heirs.
The only real question in this case, therefore, is the correct interpretation and
application of the pertinent law as invoked, interestingly enough, by both the
petitioners and the private respondents. This is Article 1088 of the Civil Code,
providing as follows:
"Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor."

In reversing the trial court, the respondent court declared that the notice required
by the said article was writtennotice and that actual notice would not suffice as a
substitute. Citing the same case of De Conejero v. Court of Appeals applied by the
trial court, the respondent court held that that decision, interpreting a like rule in
Article 1623, stressed the need for written notice although no particular form was
required.
***

11

Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court,
furnishing the co-heirs with a copy of the deed of sale of the property subject to
redemption would satisfy the requirement for written notice. "So long, therefore, as
the latter (i.e., the redemptioner) is informed in writing of the sale and the
particulars thereof," he declared, "the thirty days for redemption start running."
In the earlier decision of Butte v. Uy, the Court, speaking through the same
learned jurist, emphasized that the written notice should be given by the vendor and
12

not the vendees, conformably to a similar requirement under Article 1623, reading
as follows:
" Art. 1623. The right of legal pre-emption or redemption shall not be exercised except
within thirty days from the notice in writing by the prospective vendor, or by the vendors, as
the case may be. The deed of sale shall not be recorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written notice thereof to all
possible redemptioners.
"The right of redemption of co-owners excludes that of the adjoining owners."

As "it is thus apparent that the Philippine legislature in Article 1623 deliberately
selected a particular method of giving notice, and that notice must be deemed
exclusive," the Court held that notice given by the vendees and not thevendor would
not toll the running of the 30-day period.
The petition before us appears to be an illustration of the Holmes dictum that
"hard cases make bad laws" as the petitioners obviously cannot argue against the
fact that there was really no written notice given by the vendors to their co-heirs.
Strictly applied and interpreted, Article 1088 can lead to only one conclusion, to wit,
that in view of such deficiency, the 30day period for redemption had not begun to
run, much less expired in 1977.
But as has also been aptly observed, we test a law by its results; and likewise, we
may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the
law, the first concern of the judge should be to discover in its provisions the intent of
the lawmaker. Unquestionably, the law should never be interpreted in such a way as
to cause injustice as this is never within the legislative intent. An indispensable
part of that intent, in fact, for we presume the good motives of the legislature, is to
render justice.
Thus, we interpret and apply the law not independently of but in consonance
with justice. Law and justice are inseparable, and we must keep them so. To be
sure, there are some laws that, while generally valid, may seem arbitrary when
applied in a particular case because of its peculiar circumstances. In such a
situation, we are not bound, because only of our nature and functions, to apply them
just the same, in slavish obedience to their language. What we do instead is find a

balance between the word and the will, that justice may be done even as the law is
obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the
law as it is worded, yielding like robots to the literal command without regard to its
cause and consequence. "Courts are apt to err by sticking too closely to the words of
a law," so we are warned, by Justice Holmes again, "where these words import a
policy that goes beyond them." While we admittedly may not legislate, we
nevertheless have the power to interpret the law in such a way as to reflect the will
of the legislature. While we may not read into the law a purpose that is not there,
we nevertheless have the right to read out of it the reason for its enactment. In
doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to
give effect to the lawmaker's will.'
13

"The spirit, rather than the letter of a statute determines its construction, hence, a statute
must be read according to its spirit or intent. For what is within the spirit is within the
statute although it is not within the letter thereof, and that which is within the letter but
not within the spirit is not within the statute. Stated differently, a thing which is within the
intent of the lawmaker is as much within the statute as if within the letter; and a thing
which is within the letter of the statute is not within the statute unless within the intent of
the law makers."
14

In requiring written notice, Article 1088 seeks to ensure that the redemptioner is
properly notified of the sale and to indicate the date of such notice as the starting
time of the 30-day period of redemption. Considering the shortness of the period, it
is really necessary, as a general rule, to pinpoint the precise date it is supposed to
begin, to obviate any problem of alleged delays, sometimes consisting of only a day
or two.
The instant case presents no such problem because the right of redemption was
invoked not days but years after the sales were made in 1963 and 1964. The
complaint was filed by Tecla Padua in 1977, thirteen years after the first sale and
fourteen years after the second sale. The delay invoked by the petitioners extends to
more than a decade, assuming of course that there was a valid notice that tolled the
running of the period of redemption.
Was there a valid notice? Granting that the law requires the notice to be written,
would such notice be necessary in this case? Assuming there was a valid notice

although it was not in writing, would there be any question that the 30-day period
for redemption had expired long before the complaint was filed in 1977?
In the face of the established facts, we cannot accept the private respondents'
pretense that they were unaware of the sales made by their brother and sister in
1963 and 1964. By requiring written proof of such notice, we would be closing our
eyes to the obvious truth in favor of their palpably false claim of ignorance, thus
exalting the letter of the law over its purpose. The purpose is clear enough: to make
sure that the redemptioners are duly notified. We are satisfied that in this case the
other brothers and sisters were actually informed, although not in writing, of the
sales made in 1963 and 1964, and that such notice was sufficient.
Now, when did the 30-day period of redemption begin?
While we do not here declare that this period started from the dates of such sales
in 1963 and 1964, we do say that sometime between those years and 1976, when the
first complaint for redemption was filed, the other co-heirs were actually informed of
the sale and that thereafter the 30-day period started running and ultimately
expired. This could have happened any time during the interval of thirteen years,
when none of the co-heirs made a move to redeem the properties sold. By 1977, in
other words, when Tecla Padua filed her complaint, the right of redemption had
already been extinguished because the period f or its exercise had already expired.
The f ollowing doctrine is also worth noting:
"While the general rule is, that to charge a party with laches in the assertion of an alleged
right it is essential that he should have knowledge of the facts upon which he bases his
claim, yet if the circumstances were such as should have induced inquiry, and the means of
ascertaining the truth were readily available upon inquiry, but the party neglects to make
it, he will be chargeable with laches, the same as if he had known the facts. "
15

It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo,
who were not among them, should enclose a portion of the inherited lot and build
thereon a house of strong materials. This definitely was not the act of a temporary
possessor or a mere mortgagee. This certainly looked like an act of ownership. Yet,
given this unseemly situation, none of the co-heirs saw fit to object or at least
inquire, to ascertain the facts, which were readily available. It took all

of thirteen years before one of them chose to claim the right of redemption, but then
it was already too late.
We realize that in arriving at our conclusion today, we are deviating from the
strict letter of the law, which the respondent court understandably applied pursuant
to existing jurisprudence. The said court acted properly as it had no competence to
reverse the doctrines laid down by this Court in the above-cited cases. In fact, and
this should be clearly stressed, we ourselves are not abandoning the De Conejero
and Buttle doctrines. What we are doing simply is adopting an exception to the
general rule, in view of the peculiar circumstances of this case.
The co-heirs in this case were undeniably informed of the sales although no
notice in writing was given them. And there is no doubt either that the 30-day
period began and ended during the 14 years between the sales in question and the
filing of the complaint for redemption in 1977, without the co-heirs exercising their
right ofredemption. These are the justifications for this exception.
More than twenty centuries ago, Justinian defined justice "as the constant and
perpetual wish to render every one his due." That wish continues to motivate this
Court when it assesses the facts and the law in every case brought to it for decision.
Justice is always an essential ingredient of its decisions. Thus when the facts
warrants, we interpret the law in a way that will render justice, presuming that it
was the intention of the lawmaker, to begin with, that the law be dispensed with
justice. So we have done in this case.
16

WHEREFORE, the petition is granted. The decision of the respondent court is

REVERSED and that of the trial court is reinstated, without any pronouncement as
to costs. It is so ordered.
Teehankee,
C.J., Yap, Narvasa, Melencio-Herrera,Gutierrez,
Jr., Paras, Gancayco, Padilla, Bidin, Sarmientoand Cortes, JJ., concur.
Fernan and Feliciano, JJ., on leave.
Petition granted.
o0o

_______________

G.R. No. 101522. May 28, 1993.

LEONARDO MARIANO, AVELINA TIGUE, LAZARO MARIANO, MERCEDES

SAN PEDRO, DIONISIA M. AQUINO, and JOSE N.T. AQUINO,
petitioners, vs. HON. COURT OF APPEALS, (Sixteenth Division), GRACE
GOSIENGFIAO, assisted by her husband CHARLIE GUILLEN; EMMA
GOSIENGFIAO, assisted by her husband GERMAN GALCOS; ESTER
GOSIENGFIAO, assisted by her husband AMADOR BITONA; FRANCISCO
GOSIENGFIAO, JR., NORMA GOSIENGFIAO, and PINKY ROSE GUENO,
respondents.
Civil Law; Property; Co-ownership; Sale of property owned in common; Right of
redemption; Notice required to be given to the co-owners of the sale to a stranger must be in
writing.Respondents have not lost their right to redeem, for in the absence of a written
notification of the sale by the vendors, the 30-day period has not even begun to run.
Same; Same; Same; Same; Same; Redemption by a co-owner inures to the benefit of all
the other co-owners.Admittedly, as the property in question was mortgaged by the
decedent, a co-ownership existed among the heirs during the period given by law to redeem
the foreclosed property. Redemption of the whole property by a co-owner does not vest in
him sole ownership over said property but will inure to the benefit of all co-owners. In other
words, it will not put an end to the existing state of co-ownership. Redemption is not a mode
of terminating a co-ownership.

Same; Same; Same; Same; Same; Consignation; It is not necessary when tender of
payment was made to enforce or exercise a right and not to discharge an obligation.It has
been previously held that consignation is not required to preserve the right of repurchase as
a mere tender of payment is enough if made on time as a basis for an action to compel the
vendee a retro to resell the property; no subsequent consignation was necessary to entitle
private respondents to such reconveyance.

PETITION for review of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
The Barristers Law Office for petitioners.
Simeon T. Agustin for private respondents.
NOCON, J.:
Before Us is a petition for review of the decision dated May 13, 1991 of the Court of
Appeals in CA-G.R. CV No. 13122, entitled Grace Gosiengfiao, et al. v. Leonardo
Mariano v. Amparo Gosiengfiao raising as issue the distinction between Article
1088 and Article 1620 of the Civil Code.
1

The Court of Appeals summarized the facts as follows:

It appears on record that the decedent Francisco Gosiengfiao is the registered owner of a
residential lot located at Ugac Sur, Tuguegarao, Cagayan, particularly described as follows,
to wit:
The eastern portion of Lot 1351, Tuguegarao Cadastre, and after its segregation now designated as
Lot 1351-A, Plan PSD-67391, with an area of 1,346 square meters.

and covered by Transfer Certificate of Title No. T-2416 recorded in the Register of Deeds
of Cagayan.
The lot in question was mortgaged by the decedent to the Rural Bank of Tuguegarao
(designated as Mortgagee bank, for brevity) on several occasions before the last, being on
March 9, 1956 and January 29, 1958.
On August 15, 1958, Francisco Gosiengfiao died intestate survived by his heirs, namely:
Third-Party Defendants: wife Antonia and Children Amparo, Carlos, Severino and herein

plaintiffs-appellants Grace, Emma, Ester, Francisco, Jr., Norma, Lina (represented by

daughter Pinky Rose), and Jacinto.
The loan being unpaid, the lot in dispute was foreclosed by the mortgagee bank and in
the foreclosure sale held on December 27, 1963, the same was awarded to the mortgagee
bank as the highest bidder.
On February 7, 1964, third-party defendant Amparo Gosiengfiao-Ibarra redeemed the
property by paying the amount of P1,347.89 and the balance of P423.35 was paid on
December 28, 1964 to the mortgagee bank.
On September 10, 1965, Antonia Gosiengfiao on her behalf and that of her minor
children Emma, Lina, Norma together with Carlos and Severino executed a Deed of
Assignment of the Right of Redemption in favor of Amparo G. Ibarra appearing in the
notarial register of Pedro (Laggui) as Doc. No. 257, Page No. 6, Book No. 8, Series of 1965.
On August 15, 1966, Amparo Gosiengfiao sold the entire property to defendant
Leonardo Mariano who subsequently established residence on the lot subject of this
controversy. It appears in the Deed of Sale dated August 15, 1966 that Amparo, Antonia,
Carlos and Severino were signatories thereto.
Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of the sale of said
property by the third-party defendants. She went to the Barangay Captain and asked for a
confrontation with defendants Leonardo and Avelina Mariano to present her claim to the
said property.
On November 27, 1982, no settlement having been reached by the parties, the Barangay
Captain issued a certificate to file action.
On December 8, 1982, defendant Leonardo Mariano sold the same property to his
children Lazaro F. Mariano and Dionicia M. Aquino as evidenced by a Deed of Sale
notarized by Hilarion L. Aquino as Doc. No. 143, Page No. 19, Book No. V, Series of 1982.
On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. filed a complaint for recovery
of possession and legal redemption with damages against defendants Leonardo and Avelina
Mariano. Plaintiffs alleged in their complaint that as co-heirs and co-owners of the lot in
question, they have the right to recover their respective shares in the said property as they
did not sell the same, and the right of redemption with regard to the shares of other coowners sold to the defendants.

Defendants in their answer alleged that the plaintiffs has (sic) no cause of action
against them as the money used to redeem the lot in question was solely from the personal
funds of third-party defendant Amparo Gosiengfiao-Ibarra, who consequently became the
sole owner of the said property and thus validly sold the entire property to the defendants,
and the fact that defendants had already sold the said property to their children, Lazaro
Mariano and Dionicia M. Aquino. Defendants further contend that even granting that the
plaintiffs are co-owners with the third-party defendants, their right of redemption had
already been barred by the Statute of Limitations under Article 1144 of the Civil Code, if
not by laches.
4

After trial on the merits, the Regional Trial Court of Cagayan, Branch I, rendered a
decision dated September 16, 1986, dismissing the complaint and stating that
respondents have no right of ownership or possession over the lot in question. The
trial court further said that when the subject property was foreclosed and sold at
public auction, the rights of the heirs were reduced to a mere right of redemption.
And when Amparo G. Ibarra redeemed the lot from the Rural Bank on her own
behalf and with her own money she became the sole owner of the property.
Respondents having failed to redeem the property from the bank or from Amparo
G. Ibarra, lost whatever rights they might have on the property.
5

The Court of Appeals in its questioned decision reversed and set aside the ruling
of the trial court and declared herein respondents as co-owners of the property in
the question. The Court of Appeals said:
The whole controversy in the case at bar revolves on the question of whether or not a coowner who redeems the whole property with her own personal funds becomes the sole
owner of said property and terminates the existing state of co-ownership.
Admittedly, as the property in question was mortgaged by the decedent, a co-ownership
existed among the heirs during the period given by law to redeem the foreclosed property.
Redemption of the whole property by a co-owner does not vest in him sole ownership over
said property but will inure to the benefit of all co-owners. In other words, it will not put an
end to the existing state of co-ownership. Redemption is not a mode of terminating a coownership.
x

In the case at bar, it is undisputed and supported by records, that third-party defendant
Amparo G. Ibarra redeemed the property in dispute within the one year redemption period.

Her redemption of the property, even granting that the money used was from her own
personal funds did not make her the exclusive owner of the mortgaged property owned in
common but inured to the benefit of all co-owners. It would have been otherwise if thirdparty defendant Amparo G. Ibarra purchased the said property from the mortgagee bank
(highest bidder in the foreclosure sale) after the redemption period had already expired and
after the mortgagee bank had consolidated it title in which case there would no longer be
any co-ownership to speak of.
6

The decision of the Court of Appeals is supported by a long line of case law which
states that a redemption by a co-owner within the period prescribed by law inures to
the benefit of all the other co-owners.
7

The main argument of petitioners in the case at bar is that the Court of Appeals
incorrectly applied Article 1620 of the Civil Code, instead of Article 1088 of the
same code which governs legal redemption by co-heirs since the lot in question,
which forms part of the intestate estate of the late Francisco Gosiengfiao, was never
the subject of partition or distribution among the heirs, thus, private respondents
and third-party defendants had not ceased to be co-heirs.
On that premise, petitioners further contend that the right of legal redemption
was not timely exercised by the private respondents, since Article 1088 prescribes
that the same must be done within the period of one month from the time they were
notified in writing of the sale by the vendor.
According to Tolentino, the fine distinction between Article 1088 and Article 1620
is that when the sale consists of an interest in some particular property or
properties of the inheritance, the right of redemption that arises in favor of the
other co-heirs is that recognized in Article 1620. On the other hand, if the sale is the
hereditary right itself, fully or in part, in the abstract sense, without specifying any
particular object, the right recognized in Article 1088 exists.
8

Petitioners allege that upon the facts and circumstances of the present case,
respondents failed to exercise their right of legal redemption during the period
provided by law, citing as authority the case of Conejero, et al., v. Court of Appeals,
et al. wherein the Court adopted the principle that the giving of a copy of a deed is
equivalent to the notice as required by law in legal redemption.
9

We do not dispute the principle laid down in theConejero case. However, the facts
in the said case are not four square with the facts of the present case.
In Conejero,redemptioner Enrique Conejero was shown and given a copy of the deed
of sale of the subject property. The Court in that case stated that the furnishing of a
copy of the deed was equivalent to the giving of a written notice required by law.
10

The records of the present petition, however, show no written notice of the sale
being given whatsoever to private respondents. Although, petitioners allege that
sometime on October 31, 1982 private respondent, Grace Gosiengfiao was given a
copy of the questioned deed of sale and shown a copy of the document at the Office of
the Barangay Captain sometime November 18, 1982, this was not supported by the
evidence presented. On the contrary, respondent, Grace Gosiengfiao, in her
testimony, declared as follows:

Q When you went back to the residence of Atty. Pedro

Laggui were you able to see him?
A Yes, I did.
Q When you saw him, what did you tell?
A I asked him about the Deed of Sale which Mrs. Aquino had
told me and he also showed me a Deed of Sale. I went over
the Deed of Sale and I asked Atty. Laggui about this and he
mentioned here about the names of the legal heirs. I asked
why my name is not included and I was never informed in
writing because I would like to claim and he told me to
better consult my own attorney.
A And did you go?
A Yes, I did.
Q What kind of copy or document is that?

A It is a deed of sale signed by my mother, sister Amparo and

my brothers.
Q If shown to you the copy of the Deed of Sale will you be
able to identify it?
A Yes, sir.

11

Thereafter, Grace Gosiengfiao explicitly stated that she was never given a copy of
the said Deed of Sale.

Q Where did Don Mariano, Dr. Mariano and you see each
other?
A In the house of Brgy. Captain Antonio Bassig.
Q What transpired in the house of the Brgy. Captain when
you saw each other there?
A Brgy. Captain Bassig informed my intention of claiming
the lot and I also informed him about the Deed of Sale that
was not signed by me since it is mine it is already sold and
I was never informed in writing about it. I am a legal heir
and I have also the right to claim.
Q And what was the reply of Don Mariano and Dr. Mariano
to the information given to them by Brgy. Captain Bassig
regarding your claim?
A He insisted that the lot is already his because of the Deed
of Sale. I asked for the exact copy so that I could show to
him that I did not sign and he said he does not have a
copy.
12

The above testimony was never refuted by Dr. Mariano who was present before
Brgy. Captain Bassig.
The requirement of a written notice has long been settled as early as in the case
of Castillo v. Samonte, where this Court quoted the ruling in Hernaez v. Hernaez,32
Phil., 214, thus:
13

Both the letter and spirit of the New Civil Code argue against any attempt to widen the
scope of the notice specified in Article 1088 by including therein any other kind of notice,
such as verbal or by registration. If the intention of the law had been to include verbal
notice or any other means of information as sufficient to give the effect of this notice, then
there would have been no necessity or reasons to specify in Article 1088 of the New Civil
Code that the said notice be made in writing for, under the old law, a verbal notice or
information was sufficient
14

Moreover, petitioners themselves adopted in their argument respondents allegation

in their complaint that sometime on October, 1982 they sought the redemption of
the property from spouses Leonardo Mariano and Avelina Tigue, by tendering the
repurchase money of P12,000.00, which the spouses rejected. Consequently, private
respondents exercised their right of redemption at the first opportunity they have by
tendering the repurchase price to petitioners. The complaint they filed before the
Barangay Captain and then to the Regional Trial Court was necessary to assert
their rights. As we learned in the case of Castillo, supra:
15

It would seem clear from the above that the reimbursement to the purchaser within the
period of one month from the notice in writing is a requisite or condition precedent to the
exercise of the right of legal redemption; the bringing of an action in court is the remedy to
enforce that right in case the purchaser refuses the redemption. The first must be done
within the month-period; the second within the prescriptive period provided in the Statute
of Limitation.
16

The ruling in Castillo v. Samonte, supra, was reiterated in the case of Garcia v.
Calaliman, where We also discussed the reason for the requirement of the written
notice. We said:
Consistent with aforesaid ruling, in the interpretation of a related provision (Article 1623
of the New Civil Code) this Court has stressed that written notice is indispensable, actual
knowledge of the sale acquired in some other manners by the redemptioner,
notwithstanding. He or she is still entitled to written notice, as exacted by the code to

remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt that
the alienation is not definitive. The law not having provided for any alternative, the method
of notifications remains exclusive, though the Code does not prescribe any particular form of
written notice nor any distinctive method for written notification of redemption (Conejero et
al. v. Court of Appeals et al., 16 SCRA 775 [1966]; Etcuban v. Court of Appeals,148 SCRA
507 [1987]; Cabrera v. Villanueva, G.R. No. 75069, April 15, 1988). (Italics, ours)
17

We likewise do not find merit in petitioners position that private respondents could
not have validly effected redemption due to their failure to consign in court the full
redemption price after the tender thereof was rejected by the petitioners.
Consignation is not necessary, because the tender of payment was not made to
discharge an obligation, but to enforce or exercise a right. It has been previously
held that consignation is not required to preserve the right of repurchase as a mere
tender of payment is enough if made on time as a basis for an action to compel the
vendee a retro to resell the property; no subsequent consignation was necessary to
entitle private respondents to such reconveyance.
18

Premises considered, respondents have not lost their right to redeem, for in the
absence of a written notification of the sale by the vendors, the 30-day period has
not even begun to run.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Cost
against petitioners.
SO ORDERED.
Narvasa (C.J., Chairman), Padilla and Regalado, JJ., concur.
Decision affirmed.
Note.Reconveyance being real action over immovable prescribes after thirty
(30) years (Lindain vs. Court of Appeals, 212 SCRA 425).
o0o
No. L-79958. October 28, 1988.

EMILIANA BAUTISTA, as Heir of the late MANUEL BAUTISTA and

EVANGELINE BAUTISTA, petitioners,vs. HON. JUSTICES CAROLINA C.

GRIO-AQUINO, MANUEL T. REYES, AND JAIME M. LANTIN, in their capacity

as Justices of the Special First Division of the Court of Appeals, HON. PEDRO JL.
BAUTISTA, in his capacity as Presiding Judge of the Court of First Instance of
Rizal, Branch III, Pasay City, MANOLITO BAUTISTA, BENJAMIN DE GUZMAN,
BETTY N. BAUTISTA alias BEATRIZ BAUTISTA, NELIA N. BAUTISTA, GLORIA
N. BAUTISTA, CLARITA N. BAUTISTA and ROSALINA BAUTISTA, respondents.
Remedial Law; Special Proceeding; Extrajudicial Partition;The finding that the
signature of the deceased petitioner in the deed of extrajudicial partition is authentic, is
correct, and can no longer be questioned before the Supreme Court.The findings of facts of
both the trial court and the respondent Appellate Court that the signature of Manuel
Bautista in the questioned Deed of Extrajudicial Partition is authentic, as examined by the
NBI, can no longer be questioned in this proceeding. Nevertheless, even granting that the
signature of Manuel Baustista in the questioned Extrajudicial Deed of Partition is genuine,
an examination of the document based on admitted and proven facts renders the document
fatally defective.
Same; Same; Same; An extrajudicial settlement of the estate applies only to the estate
left by the decedent; Property that does not belong to the decedents estate cannot be the
subject matter of an extrajudicial partition.Under Section 1, Rule 74 of the Rules of Court
an extrajudicial settlement of the Estate applies only to the estate left by the decedent who
died without a will, and with no creditors, and the heirs are all of age or the minors are
represented by their judicial or legal representatives. If the property does not belong to the
estate of the decedent certainly it cannot be the subject matter of an extrajudicial partition.
Same; Same; Same; The deed of extrajudicial partition is void ab initio for including in
the partition property which does not pertain to the estate of the deceased and which deprives
the lawful owner thereof of his property without due process of law.As the subject property
does not belong to the estate of Juliana Nojadera, the Deed of Extrajudicial Partition,
is void ab initio being contrary to law. To include in an extrajudicial partition property
which does not pertain to the estate of the deceased would be to deprive the lawful owner
thereof of his property without due process of law. Only property of the estate of the
decedent which is transmitted by succession can be the lawful subject matter of an
extrajudicial partition. In this case, the said partition obviously prejudices the right of
Manuel Bautista as exclusive owner of the property.
Same; Same; Same; Preterition; The partition is also void as it effectively resulted in the
preterition of the right of the compulsory heir of the deceased; The preterition was attended
with bad faith.The said partition also effectively resulted in the preterition of the right of
Evangeline Bautista as a compulsory heir of Manuel Bautista, daughter of the latter by his

second marriage. It is difficult to believe that Manuel Bautista would wittingly overlook and
ignore the right of her daughter Evangeline to share in the said property. It is not
surprising that he denied signing the said document. Moreover, private respondents knew
Evangeline Bautista who is their half-sister to be a compulsory heir. The court finds that
her preterition was attended with bad faith hence the said partition must be rescinded.
Same; Same; Same; An extrajudicial partition cannot constitute a partition of the
property during the lifetime of its owner; Partition of future inheritance is prohibited by law.
Moreover, such extrajudicial partition cannot constitute a partition of the property during
the lifetime of its owner, Manuel Bautista. Partition of future inheritance is prohibited by
law.
Same; Same; Same; As the extrajudicial partition is null and void ab initio, all
subsequent transactions involving the property between and among the private respondents
are also null and void.As said Extrajudicial Partition dated December 22, 1966, of
property belonging exclusively to petitioner Manuel Bautista, is null and void ab initio it
follows that all subsequent transactions involving the same property between and among
the private respondents are also null and void.
Same; Same; Same; Prescription; Petitioners right to sue their co-owners for partition of
the property is imprescriptible.Prescription cannot be invoked in this case as the
petitioners right to sue their co-owners for partition of the property is imprescriptible. And
even assuming that the present action may prescribe as ruled by the respondent court,
petitioners Emiliana Bautista and Evangeline Bautista who are not parties to the said
instrument asserted that they discovered the same only soon before they filed the complaint
in court. Certainly, the action has not prescribed.

PETITION to review the decision of the Court of Appeals. Grio-Aquino, J.

The facts are stated in the opinion of the Court.
Roberto M. Mendoza for petitioners.
Florante R. Mendoza for respondents.
GANCAYCO, J.:
Can the property of the surviving husband be the subject of an extrajudicial
partition of the estate of the deceased wife?

This is the singular issue in this petition.

In Civil Case No. 4033-P, petitioners instituted an action in the Court of First
Instance of Rizal to declare the deed of extra-judicial partition, deed of absolute
sale, Transfer Certificates of Title Nos. 14182, 14186 and 15665 all of Registry of
Deeds of Pasay City and Tax Declaration No. 5147, null and void.
On January 6, 1976, the parties submitted an Agreed Stipulation of Facts dated
December 15, 1975:
1. 1.That both parties admit that the land in question was registered in the name of
petitioner Manuel Bautista under T.C.T No. 2210, and the latter inherited this land
from his father, Mariano Bautista;
2. 2.Both petitioners and private respondents admit that on Dec. 22, 1966, a Deed of
Extrajudicial Partition was executed. Private respondents were signatories to the
deed, and the signature of petitioner Manuel Bautista was supposed to appear in
that document, although petitioner Manuel Bautista denied having signed that
Extrajudicial Partition;
3. 3.Both parties admit that upon registration of the Deed of Extrajudicial Partition,
T.C.T. No. 2210 was cancelled and in lieu thereof, T.C.T.-T-14182 was issued;
4. 4.The parties admit that the private respondents, with the exception of Manolito
Bautista, executed a Deed of Absolute Sale in favor of Manolito Bautista of that
property;

1. 5.Upon registration of the Deed of Sale, T.C.T. T-14182 was cancelled and in lieu
thereof, T.C.T. No. T-14186 was issued to Manolito Bautista;
2. 6.On August 7, 1969, Manolito Bautista executed a Deed of Sale in favor of the other
private respondents and upon registration of said Deed of Sale, T.C.T. Nos. T-15665,
T-15666, T-15667, T-15668, T-15669, T-15670, T-15671, were issued to private
respondents;
3. 7.Parties admit that petitioner Manuel Bautista married his second wife Emiliana
Tamayo;
4. 8.Parties admit that Manuel Bautista and his second wife, Emiliana Tamayo, had
only a child, Evangeline Bautista, born on April 29, 1949;

5. 9.That the property in question was the subject matter of extrajudicial partition of
property on December 22, 1966, among the heirs of the late Juliana Nojadera, the
first wife of Manuel Bautista;
6. 10.Manuel Bautista denied participation in the Extrajudicial Partition of Property;
7. 11.On August 1, 1974, all the parties agreed to submit to the NBI the questioned
signature of Manuel Bautista;
8. 12.That the NBI concluded that the questioned document was authentic. (Pp. 37-38,
rollo; pp. 2-3 of decision of respondent court)

In a decision of January 14, 1983, the trial court dismissed the complaint with costs
against plaintiffs. On appeal, a decision was rendered in due course by the Court of
Appeals on August 3, 1987, affirming the decision of the trial court.
1

Petitioner now seeks a review of said decision alleging the following errors
committed by the respondent court
1. A.THE FINDINGS OF FACTS OF PUBLIC RESPONDENTS ARE MANIFESTLY
ABSURD AND MISTAKEN;
2. B.PUBLIC RESPONDENTS AUTHORIZED THE EXTRA-JUDICIAL PARTITION
OF FUTURE INHERITANCE IN CLEAR VIOLATION OF ARTICLE 1347 OF
THE NEW CIVIL CODE:

1.

C.PUBLIC RESPONDENTS AUTHORIZED THE PRETERITION OF

PETITIONER EVANGELINE BAUTISTA IN VIOLATION OF THE LAW ON
SUCCESSION. (P. 7, petition for review; p. 8, rollo)

The petition is impressed with merit.

The findings of facts of both the trial court and the respondent Appellate Court
that the signature of Manuel Bautista in the questioned Deed of Extrajudicial
Partition is authentic, as examined by the NBI, can no longer be questioned in this
proceeding. Nevertheless, even granting that the signature of Manuel Bautista in
the questioned Extrajudicial Deed of Partition is genuine, an examination of the
document based on admitted and proven facts renders the document fatally
defective. The Extrajudicial partition was supposed to be a partition without court
intervention of the estate of the late Juliana Nojadera, first wife of Manuel

Bautista, constituting the subject property. In the same document Manuel Bautista
appears to have waived his right or share in the property in favor of private
respondents.
However, the property subject matter of said Extrajudicial partition does not
belong to the estate of Juliana Nojadera. It is the exclusive property of Manuel
Bautista who inherited the same from his father Mariano Bautista, which was
registered in his name under T.C.T. No. 2210.
Under Section 1, Rule 74 of the Rules of Court an extrajudieial settlement of the
Estate applies only to theestate left by the decedent who died without a will, and
with no creditors, and the heirs are all of age or the minors are represented by their
judicial or legal representatives. If the property does not belong to the estate of the
decedent certainly it cannot be the subject matter of an Extrajudicial partition.
As the subject property does not belong to the estate of Juliana Nojadera, the
Deed of Extrajudicial Partition, isvoid ab initio being contrary to law. To include in
an Extrajudicial partition property which does not pertain to the estate of the
deceased would be to deprive the lawful owner thereof of his property without due
process of law. Only property of the estate of the decedent which is transmitted by
succession can be the lawful subject matter of an Extrajudicial partition. In this
case, the said partition obviously prejudices the right of Manuel Bautista as
exclusive owner of the property.
The said partition also effectively resulted in the preterition of the right of
Evangeline Bautista as a compulsory heir of Manuel Bautista, daughter of the
latter by his second marriage. It is difficult to believe that Manuel Bautista would
wittingly overlook and ignore the right of her daughter Evangeline to share in the
said property. It is not surprising that he denied signing the said document.
Moreover, private respondents knew Evangeline Bautista who is their half-sister to
be a compulsory heir. The court finds that her preterition was attended with bad
faith hence the said partition must be rescinded.
2

The Court observes that after the execution of said extrajudicial partition and
issuance of the title in their names, private respondents except Manolito Bautista in
turn executed a deed of absolute sale of the property in favor of the latter in whose
name the title was also issued. And yet soon thereafter another deed of sale was

executed this time by Manolito Bautista selling back the same property to private
respondents in whose names the respective titles were thus subsequently issued.
This series of transactions between and among private respondents is an indication
of a clever scheme to place the property beyond the reach of those lawfully entitled
thereto. Moreover, such extrajudicial partition cannot constitute a partition of the
property during the lifetime of its owner, Manuel Bautista. Partition of future
inheritance is prohibited by law.
3

As said Extrajudicial Partition dated December 22, 1966, of property belonging

exclusively to petitioner Manuel Bautista, is null and void ab initio it follows that all
subsequent transactions involving the same property between and among the
private respondents are also null and void.
Prescription cannot be invoked in this case as the petitioners right to sue their
co-owners for partition of the property is imprescriptible. And even assuming that
the present action may prescribe as ruled by the respondent court, petitioners
Emiliana Bautista and Evangeline Bautista who are not parties to the said
instrument asserted that they discovered the same only soon before they filed the
complaint in court. Certainly the action has not prescribed.
4

WHEREFORE, AND IN CONSIDERATION OF THE FOREGOING, the Decision

dated August 3, 1987, of respondent Court of Appeals in CA-G.R. CV No. 03631 and
the Resolution of September 11, 1987, in the same case, are hereby reversed and set
aside; and a new one is rendered declaring the Deed of Extrajudicial Partition dated
December 22, 1966, as null and void ab initio, nullifying and cancelling T.C.T. Nos.
T-14182, T-14186, T-15665, T-15666, T-15667, T-15668, T-15669, T-15670, T-15671,
and Tax Declaration No. 5147, restoring and reviving T.C.T. No. 2210, in the name
of Manuel Bautista, with costs against private respondents. Let a copy of this
decision be furnished to the Registry of Deeds of Pasay City for implementation.
This decision is immediately executory.
SO ORDERED.
Narvasa, Cruz and Medialdea, JJ., concur.
Grio-Aquino, J., no part.

Decision and resolution reversed and set aside.

Note.It is necessary to determine whether extrajudicial partition is void or
merely voidable to settle the parties, conflicting claims. (Tandayan vs. Bacani, 117
SCRA 117.)
o0o