G.R. No.

109387 April 25, 1994

material(s) and a funeral business therein, all located at Sta. Rosa, Laguna,
among the following surviving heirs in the following proportions;

LEONARDO LIM DE MESA, petitioner, vs. HON. COURT OF APPEALS, HON.

RODRIGO V. COSICO, as Presiding Judge of the Regional Trial Court,
Bian, Laguna; ROGELIO S. MOLINA, Branch Sheriff; and ALFREDO,
NUMERIANO, ZENAIDA, ROGELIO, YOLANDA, OLIVIA, BENJAMIN,
TERESITA and WILSON, all surnamed LIM DE MESA, respondents.

1. Rogelio Lim de Mesa - 9.8787872 /13 shares representing the sum total of
his participations plus all the shares sold to him by co-heirs Alfredo,
Numeriano, Zenaida, Yolanda, Olivia, Benjamin, and Teresita, all surnamed
Lim de Mesa

REGALADO, J.:

2. Leonardo Lim de Mesa - 0.6515151 /13 share

In a resolution promulgated on March 4, 1993 in CA-G.R. SP No. 29818, entitled

("Leonardo Lim de Mesa vs. Hon. Rodrigo V. Cosico, etc., et al.,") respondent
court denied due course to the petition for certiorari which sought the nullification
of three orders of the Regional Trial Court, Branch 24, Bian, Laguna which were
issued as incidents of Civil Case No. B-1942 thereof. Petitioner is now before us
impugning the forestalled resolution. 1

3. Leticia Lim de Mesa - 1.818181 /13 share

The case stemmed from an action for partition filed by herein private respondents
against their eldest brother, herein petitioner Leonardo Lim de Mesa, and his
sister Leticia Lim de Mesa, which suit was docketed in the Regional Trial Court of
Laguna, Branch 24, as Civil Case No. B-1942. Private respondents prayed
therein for the partition of the property left by their parents, Manuel de Mesa and
Lucia Lim, consisting of a house and lot in Sta. Rosa Estate Subdivision, Laguna
and a funeral parlor; that petitioner Leonardo de Mesa be compelled to render an
accounting of the income of the funeral parlor business from October 24, 1980,
the date when the mother of the parties died; and that private respondent Rogelio
Lim de Mesa be declared the owner of eight-tenths (8 /10) of the entire estate, as
the other heirs had assigned their interests to him.

1. Rogelio Lim de Mesa - 8 /11 shares

In his answer, petitioner admitted that their deceased parents left the house and
lot described in the complaint, but claimed that the funeral parlor, known as Lim
de Mesa Memorial Chapel, was solely owned by him. Petitioner also alleged that
their deceased parents left other properties and businesses which are in the
possession and under the management of the two other plaintiffs therein.

4. Wilson Lim de Mesa - 0.6515151 /13 share

as regards the property of the estate, namely, Lot No. 329 and the residential
house of strong material(s) erected therein, and

2. Leonardo Lim de Mesa - 1 /11 shares

3. Leticia Lim de Mesa - 1 /11 shares
4. Wilson Lim de Mesa - 1 /11 shares
as regards the proceeds from the funeral business from November 1980
up to the present after an accounting thereof to be rendered by
Leonardo Lim de Mesa.
2. Ordering the defendants Leonardo Lim de Mesa and Leticia Lim de Mesa
and plaintiff Wilson Lim de Mesa to execute a deed of confirmation of the
Extra-Judicial Partition with Sale (Exhibit "H") and "Reformation of
Instrument" (Exhibit "I") dated January 27, 1983 and November 12, 1984,
respectively.

After trial, the court rendered the following judgment:

WHEREFORE, in view of all the foregoing considerations, judgment is
hereby rendered as follows:
1. Ordering the partition of the estate of the deceased spouses Manuel de
Mesa and Lucia Lim described in paragraph 1 of the complaint as Lot No.
329 of the Sta. Rosa Estate Subdivision with a residential house of strong

3. Ordering defendant Leonardo Lim de Mesa to render an accounting of the

operation and management of the funeral business from November 1980 up
to the present within thirty (30) days from the date this decision becomes
final.
4. Ordering the defendants to pay the plaintiffs the amount of P30,000.00 as
moral damages and the amount of P20,000.00 as reimbursement for
attorney's fees.

5. Ordering defendants to pay costs of suits.

On appeal, the Court of Appeals affirmed the aforesaid judgment with some
modifications, that is, by deleting those portions thereof directing therein
defendants Leonardo and Leticia Lim de Mesa, aside from plaintiff Wilson Lim de
Mesa, to execute a deed confirming the extrajudicial partition with sale and the
reformation of instrument, and to pay the awards for moral damages and
attorney's fees. 3 Not satisfied therewith, petitioners further sought relief from this
Court which, however, denied their appeal in a resolution dated January 27,
1992. On June 4, 1992, entry of said judgment was made, thereby making the
judgment of the lower court, as modified by respondent Court of Appeals, final
and executory.
Thereafter, private respondents filed a motion for execution which was granted
by the lower court. 4 A writ of execution was issued, but the same was returned
unsatisfied on September 21, 1992 due to petitioner's refusal to comply with the
same. Private respondents then filed a motion to enforce judgment which was
granted by the lower court in its order dated October 14, 1992. 5
Subsequently, petitioner filed a motion to be furnished copies of the basic
pleadings and/or orders. Private respondents filed their opposition thereto,
arguing that petitioner was not entitled to the relief prayed for since private
respondents were entitled to execution as a matter of right, and that all incidental
matters flowing therefrom may be resolved motu proprio without prior notice and
hearing to petitioner. The court a quo acted on petitioner's motion by an order,
dated November 13, 1992, directing private respondent Rogelio Lim de Mesa to
furnish petitioner a copy of the deed of partition and such documents as the latter
would specify. 6
Private respondents then filed a motion to resolve the incident subject of the
order of October 14, 1992 and this, in turn, led to the issuance of the lower
court's order dated November 18, 1992. 7 Upon motion filed by private
respondents, the lower court issued another order, dated November 25, 1992,
granting the former's motion for a writ of possession and delineation of property
lines. 8 Petitioner thereafter moved for the reconsideration of the orders dated
November 18 and 25, 1992, contending that the same were issued in violation of
Section 4, Rule 15 of the Rules of Court, as these were issued ex parte. 9 In its
order dated December 23, 1992, the court below denied the motion for
reconsideration.10
A petition for certiorari was then filed by petitioner in the Court of Appeals
assailing, on the same grounds, the following orders of the trial court, to wit:

1. ORDER dated October 14, 1992 designating Atty. Luzod, Jr. to sign the
deed of partition for and in behalf of Leonardo Lim de Mesa, petitioner, to
enforce the judgment, and ordering petitioner to explain within 10 days from
notice why he should not be cited (for) contempt of court pursuant to Sec. 3
(a) in relation to Sec. 6 and 7, Rule 71 of the Revised Rules of Court;
2. ORDER dated November 18, 1992, giving petitioner an extension of 15
days to render an accounting and in case of failure, to cite him (for) contempt
of court (for) violation of Sec. 3(b) in relation to Sec. 6, (Rule 71), Rules of
Court, and if he continues to disobey, the public respondent may be
constrained to order his imprisonment.
3. ORDER dated November 25, 1992, granting a writ of possession directing
the respondent Sheriff to place private respondent Rogelio Lim de Mesa in
possession of the property pertaining to him by virtue of ANNEXES "X", "A",
to "A-4". 11
In its resolution of March 4, 1993, as stated at the outset, respondent Court of
Appeals ruled against therein petitioner, 12 hence the instant petition with the
following assignment of errors:
1. The Court of Appeals erred in applying Rule 39 of the Rules of Court and,
therefore, in concluding that the judgment in the action for partition in Civil
Case No. B-1942 became final and executory as of June 4, 1992 and the
prevailing party is entitled to a writ of execution the issuance of which is a
ministerial duty of the court.
2. The Court of Appeals also erred in holding that the three (3) assailed
orders in Civil Case No. B-1942 were issued consequent to the execution of
a judgment that has already become final and executory.
3. The Court of Appeals finally erred in holding that the three (3) assailed
orders in Civil Case No. B-1942 having been issued ex-parte is of no
moment where the execution is a matter of right and the losing party need
not be given advance notice of hearing of such motion. 13
It is from the foregoing perceptions that the main thrust of herein petitioner's
arguments postulates the supposed nullity of the writ of execution issued by the
trial court since the same was issued without prior notice and hearing. We
disagree.
Jurisprudentially entrenched is the rule that a judgment ordering partition with
damages is final and duly appealable, notwithstanding the fact, which petitioner

seeks to capitalize on, that further proceedings will still have to take place in the
trial court. 14
There are two stages involved in the special civil action of judicial partition and
accounting under Rule 69 of the Rules of Court.
The first stage of an action for judicial partition and/or accounting is concerned
with the determination of whether or not a co-ownership in fact exists and a
partition is proper, that is, it is not otherwise legally proscribed and may be made
by voluntary agreement of all the parties interested in the property. This phase
may end in a declaration that plaintiff is not entitled to the desired partition either
because a co-ownership does not exist or a partition is legally prohibited. It may
also end, on the other hand, with an adjudgment that a co-ownership does in
truth exist, that partition is proper in the premises, and that an accounting of rents
and profits received by the defendant from the real estate in question is in order.
In the latter case, "the parties may, if they are able to agree, make partition
among themselves by proper instruments of conveyance, and the court shall
confirm the partition so agreed upon by all the parties." 15 In either case, whether
the action is dismissed or partition and/or accounting is decreed, the order is a
final one and may be appealed by any party aggrieved thereby. 16
The second stage commences when the parties are unable to agree upon the
partition ordered by the court. In that event, partition shall be effected for the
parties by the court with the assistance of not more than three (3)
commissioners. This second phase may also deal with the rendition of the
accounting itself and its approval by the Court after the parties have been
accorded the opportunity to be heard thereon, and an award for the recovery by
the party or parties thereto entitled of their just shares in the rents and profits of
the real estate in question. Such an order is, to be sure, also final and
appealable. 17

and is a mandatory and ministerial duty on the part of the court. Once a judgment
becomes final and executory, the prevailing party can have it executed as a
matter of right, and the judgment debtor need not be given advance notice of the
application for execution nor be afforded prior hearings thereon. 19
On the bases of the foregoing considerations, therefore, the Court of Appeals
acted correctly in holding that the failure to serve a copy of the motion for
execution on petitioner is not a fatal defect. In fact, there was no necessity for
such service.
However, notwithstanding our aforesaid observations, the orders of the trial court
dated October 14, 1992 and November 25, 1992, respectively directing Atty.
Luzod, Jr. to sign the deed of partition for and in behalf of petitioner and granting
the writ of possession, must be set aside for having been rendered in excess of
jurisdiction.
The trial court cannot compel herein petitioner to sign the extrajudicial deed of
partition prepared solely by private respondents. Concomitantly, it cannot issue a
writ of possession pursuant to the said extrajudicial partition.
An action for partition, which is typically brought by a person claiming to be the
owner of a specified property against a defendant or defendants whom the
plaintiff recognizes to be his co-owners, may readily be seen to simultaneously
present two principal issues. Firstly, there is the issue of whether the plaintiff is
indeed a co-owner of the property sought to be partitioned. Secondly, assuming
that the plaintiff successfully hurdles the first issue, there is the secondary issue
of how the property is to be divided between the plaintiff and the defendants, that
is, what portion should go to which co-owner. 20

In the decision ordering partition, the execution of that part of the judgment which
will not necessitate any further proceedings may be enforced. Further
proceedings, such as the appointment of commissioners to carry out the partition
and the rendition and approval of the accounting, may be had without prejudice
to the execution of that part of the judgment which needs no further proceedings.
Thus, it has been held that execution was entirely proper to enforce the
defendant's obligation to render an accounting and to exact payment of the
money value of the plaintiffs' shares in the personal property and attorney's fees
due defendants, as well as the costs of the suit and damages. 18

After a judgment is rendered in an action for partition declaring that the property
in question shall be divided among the parties thereto, the procedure provided by
law thereafter is that, if the parties can agree among themselves, then the
partition can be made by them through the proper instruments of conveyance
which shall be submitted for approval of the court, and such partition with the
court order confirming the same shall be recorded in the office of the proper
registry of deeds. But, if the parties are unable to agree upon the partition, the
court shall by order appoint not more than three (3) competent and disinterested
persons as commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of the property
as the court in such order shall direct. 21

In the present case, the decision ordering partition and the rendition of
accounting had already become final and executory. The execution thereof thus
became a matter of right on the part of the plaintiffs, herein private respondents,

The decision in Civil Case No. B-1942 merely declares that partition is proper
and forthwith specified therein the respective aliquot shares of the parties to the
real estate and to the proceeds of the funeral business. Withal, it did not

specifically state, by metes and bounds and by adequate description, the

particular portion of the real estate to be assigned to each party. Actual partition
is, therefore, necessary. Since the parties, however, cannot agree on the actual
division and allocation of the property held in common, the trial court should
order the appointment of commissioners to carry out the partition, as provided by
Section 3 of Rule 69.
WHEREFORE, the assailed resolution of respondent Court of Appeals is hereby
MODIFIED and the questioned orders of the trial court dated October 14, 1992
and November 25, 1992 are hereby SET ASIDE. The court a quois directed to
immediately appoint and constitute the necessary number of commissioners who
shall expeditiously effect the partition of the subject property in accordance with
Rule 69 of the Rules of Court.
SO ORDERED.

G.R. No. L-9374

February 16, 1915

FRANCISCO DEL VAL, ET AL., plaintiffs-appellants,

vs.
ANDRES DEL VAL, defendant-appellee.
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the city of
Manila dismissing the complaint with costs.
The pleadings set forth that the plaintiffs and defendant are brother and
sisters; that they are the only heirs at law and next of kin of Gregorio
Nacianceno del Val, who died in Manila on August 4, 1910, intestate; that an
administrator was appointed for the estate of the deceased, and, after a
partial administration, it was closed and the administrator discharged by
order of the Court of First Instance dated December 9, 1911; that during the
lifetime of the deceased he took out insurance on his life for the sum of
P40,000 and made it payable to the defendant as sole beneficiary; that after
his death the defendant collected the face of the policy; that of said policy he
paid the sum of P18,365.20 to redeem certain real estate which the decedent
had sold to third persons with a right to repurchase; that the redemption of
said premises was made by the attorney of the defendant in the name of the
plaintiff and the defendant as heirs of the deceased vendor; that the
redemption of said premises they have had the use and benefit thereof; that
during that time the plaintiffs paid no taxes and made no repairs.
It further appears from the pleadings that the defendant, on the death of the
deceased, took possession of most of his personal property, which he still
has in his possession, and that he has also the balance on said insurance
policy amounting to P21,634.80.
Plaintiffs contend that the amount of the insurance policy belonged to the
estate of the deceased and not to the defendant personally; that, therefore,
they are entitled to a partition not only of the real and personal property, but
also of the P40,000 life insurance. The complaint prays a partition of all the
property, both real and personal, left by the deceased; that the defendant
account for P21,634.80, and that that sum be divided equally among the
plaintiffs and defendant along with the other property of deceased.
The defendant denies the material allegations of the complaint and sets up
as special defense and counterclaim that the redemption of the real estate

sold by his father was made in the name of the plaintiffs and himself instead
of in his name alone without his knowledge or consent; and that it was not his
intention to use the proceeds of the insurance policy for the benefit of any
person but himself, he alleging that he was and is the sole owner thereof and
that it is his individual property. He, therefore, asks that he be declared the
owner of the real estate redeemed by the payment of the P18,365.20, the
owner of the remaining P21,634.80, the balance of the insurance policy, and
that the plaintiff's account for the use and occupation of the premises so
redeemed since the date of the redemption.
The learned trial court refused to give relief to either party and dismissed the
action.
It says in its opinion: "This purports to be an action for partition, brought
against an heir by his coheirs. The complaint, however, fails to comply with
Code Civ., Pro. sec. 183, in that it does not 'contain an adequate description
of the real property of which partition is demanded.' Because of this defect
(which has not been called to our attention and was discovered only after the
cause was submitted) it is more than doubtful whether any relief can be
awarded under the complaint, except by agreement of all the parties."
This alleged defect of the complaint was made one of the two bases for the
dismissal of the action.
We do not regard this as sufficient reason for dismissing the action. It is the
doctrine of this court, set down in several decisions, Lizarraga Hermanos vs.
Yap Tico, 24 Phil. Rep., 504, that, even though the complaint is defective to
the extent of failing in allegations necessary to constitute a cause of action, if,
on the trial of the cause, evidence is offered which establishes the cause of
action which the complaint intended to allege, and such evidence is received
without objection, the defect is thereby cured and cannot be made the
ground of a subsequent objection. If, therefore, evidence was introduced on
the trial in this case definitely and clearly describing the real estate sought to
be partitioned, the defect in the complaint was cured in that regard and
should not have been used to dismiss the action. We do not stop to inquire
whether such evidence was or was not introduced on the trial, inasmuch as
this case must be turned for a new trial with opportunity to both parties to
present such evidence as is necessary to establish their respective claims.
The court in its decision further says: "It will be noticed that the provision
above quoted refers exclusively to real estate. . . . It is, in other words, an
exclusive real property action, and the institution thereof gives the court no

jurisdiction over chattels. . . . But no relief could possibly be granted in this

action as to any property except the last (real estate), for the law
contemplated that all the personal property of an estate be distributed before
the administration is closed. Indeed, it is only in exceptional cases that the
partition of the real estate is provided for, and this too is evidently intended to
be effected as a part of the administration, but here the complaint alleges
that the estate was finally closed on December 9, 1911, and we find upon
referring to the record in that case that subsequent motion to reopen the
same were denied; so that the matter of the personal property at least must
be considered res judicata (for the final judgment in the administration
proceedings must be treated as concluding not merely what was adjudicated,
but what might have been). So far, therefore, as the personal property at
least is concerned, plaintiffs' only remedy was an appeal from said order."

probate court to turn over to them both the real and personal property without
division; and where that request is unanimous it is the duty of the court to
comply with it, and there is nothing in section 753 of the Code of Civil
Procedure which prohibits it. In such case an order finally settling the estate
and discharging the administrator would not bar a subsequent action to
require a division of either the real or personal property. If, on the other hand,
an order had been made in the administration proceedings dividing the
personal or the real property, or both, among the heirs, then it is quite
possible that, to a subsequent action brought by one of the heirs for a
partition of the real or personal property, or both, there could have been
interposed a plea of res judicata based on such order. As the matter now
stands, however, there is no ground on which to base such a plea. Moreover,
no such plea has been made and no evidence offered to support it.

We do not believe that the law is correctly laid down in this quotation. The
courts of the Islands have jurisdiction to divide personal property between the
common owners thereof and that power is as full and complete as is the
power to partition real property. If an actual partition of personal property
cannot be made it will be sold under the direction of the court and the
proceeds divided among the owners after the necessary expenses have
been deducted.

With the finding of the trial court that the proceeds of the life-insurance policy
belong exclusively to the defendant as his individual and separate property,
we agree. That the proceeds of an insurance policy belong exclusively to the
beneficiary and not to the estate of the person whose life was insured, and
that such proceeds are the separate and individual property of the
beneficiary, and not of the heirs of the person whose life was insured, is the
doctrine in America. We believe that the same doctrine obtains in these
Islands by virtue of section 428 of the Code of Commerce, which reads:

The administration of the estate of the decedent consisted simply, so far as

the record shows, in the payment of the debts. No division of the property,
either real or personal, seems to have been made. On the contrary, the
property appears, from the record, to have been turned over to the heirs in
bulk. The failure to partition the real property may have been due either to
the lack of request to the court by one or more of the heirs to do so, as the
court has no authority to make a partition of the real estate without such
request; or it may have been due to the fact that all the real property of
decedent had been sold under pacto de retro and that, therefore, he was not
the owner of any real estate at the time of his death. As to the personal
property, it does not appear that it was disposed of in the manner provided by
law. (Sec. 753, Code of Civil Procedure.) So far as this action is concerned,
however, it is sufficient for us to know that none of the property was actually
divided among the heirs in the administration proceeding and that they
remain coowners and tenants-in- common thereof at the present time. To
maintain an action to partition real or personal property it is necessary to
show only that it is owned in common.

It is claimed by the attorney for the plaintiffs that the section just quoted is
subordinate to the provisions of the Civil Code as found in article 1035. This
article reads:

The order finally closing the administration and discharging the administrator,
referred to in the opinion of the trial court, has nothing to do with the division
of either the real or the personal property. The heirs have the right to ask the

Counsel also claim that the proceeds of the insurance policy were a donation
or gift made by the father during his lifetime to the defendant and that, as

The amount which the underwriter must deliver to the person

insured, in fulfillment of the contract, shall be the property of the
latter, even against the claims of the legitimate heirs or creditors of
any kind whatsoever of the person who effected the insurance in
favor of the former.

An heir by force of law surviving with others of the same character to

a succession must bring into the hereditary estate the property or
securities he may have received from the deceased during the life of
the same, by way of dowry, gift, or for any good consideration, in
order to compute it in fixing the legal portions and in the account of
the division.

such, its ultimate destination is determined by those provisions of the Civil

Code which relate to donations, especially article 819. This article provides
that "gifts made to children which are not betterments shall be considered as
part of their legal portion."
We cannot agree with these contentions. The contract of life insurance is a
special contract and the destination of the proceeds thereof is determined by
special laws which deal exclusively with that subject. The Civil Code has no
provisions which relate directly and specifically to life- insurance contracts or
to the destination of life insurance proceeds. That subject is regulated
exclusively by the Code of Commerce which provides for the terms of the
contract, the relations of the parties and the destination of the proceeds of
the policy.
The proceeds of the life-insurance policy being the exclusive property of the
defendant and he having used a portion thereof in the repurchase of the real
estate sold by the decedent prior to his death with right to repurchase, and
such repurchase having been made and the conveyance taken in the names
of all of the heirs instead of the defendant alone, plaintiffs claim that the
property belongs to the heirs in common and not to the defendant alone.
We are not inclined to agree with this contention unless the fact appear or be
shown that the defendant acted as he did with the intention that the other
heirs should enjoy with him the ownership of the estate in other words,
that he proposed, in effect, to make a gift of the real estate to the other heirs.
If it is established by the evidence that that was his intention and that the real
estate was delivered to the plaintiffs with that understanding, then it is
probable that their contention is correct and that they are entitled to share
equally with the defendant therein. If, however, it appears from the evidence
in the case that the conveyances were taken in the name of the plaintiffs
without his knowledge or consent, or that it was not his intention to make a
gift to them of the real estate, then it belongs to him. If that facts are as
stated, he has two remedies. The one is to compel the plaintiffs to reconvey
to him and the other is to let the title stand with them and to recover from
them the sum he paid on their behalf.
For the complete and proper determination of the questions at issue in this
case, we are of the opinion that the cause should be returned to the trial
court with instructions to permit the parties to frame such issues as will

permit the settlement of all the questions involved and to introduce such
evidence as may be necessary for the full determination of the issues
framed. Upon such issues and evidence taken thereunder the court will
decide the questions involved according to the evidence, subordinating his
conclusions of law to the rules laid down in this opinion.
We do not wish to be understood as having decided in this opinion any
question of fact which will arise on the trial and be there in controversy. The
trial court is left free to find the facts as the evidence requires. To the facts as
so found he will apply the law as herein laid down.
The judgment appealed from is set aside and the cause returned to the Court
of First Instance whence it came for the purpose hereinabove stated. So
ordered.
Separate Opinions
ARAULLO, J., concurring:
I concur in the result and with the reasoning of the foregoing decision, only in
so far as concerns the return of the record to the lower court in order that it
fully and correctly decide all the issues raised therein, allow the parties to
raise such questions as may help to decide all those involved in the case,
and to present such evidence as they may deem requisite for a complete
resolution of all the issues in discussion, because it is my opinion that it is
inopportune to make, and there should not be made in the said majority
decision the findings therein set forth in connection with articles 428 of the
Code of Commerce and 1035 of the Civil Code, in order to arrive at the
conclusion that the amount of the insurance policy referred to belongs
exclusively to the defendant, inasmuch a this is one of the questions which,
according to the decision itself, should be decided by the lower court after an
examination of the evidence introduced by the parties; it is the lower court
that should make those findings, which ought afterwards to be submitted to
this court, if any appeal be taken from the judgment rendered in the case by
the trial court in compliance with the foregoing decision.