[G.R. No. 25966. November 1, 1926.

] In the matter of the estate of Tomas Rodriguez, deceased MANUEL TORRES, special administrator, and LOPEZ DE BUENO, heir, Appellees, v. MARGARITA LOPEZ, opponent-appellant. SYLLABUS 1. WILLS; JOINT HEIRS UNDER WILL; ACCRETION. When one of two joint heirs called by will to an inheritance without special designation of shares dies before the testator, the part pertaining to such heir will, upon the subsequent death of the testator, go by accretion to the coheir; and the additional circumstance that the predeceasing heir was, at the time of the making of the will, disqualified to take, by reason of his being then the legal guardian of the testator with accounts unsettled, does not make a case for intestate succession as to his part of the estate. This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. The appellant, Margarita Lopez, claims said half by intestate succession as next of kin and nearest heir; while the appellee, Luz Lopez de Bueno, claims the same by accretion and in the character of universal heir under the will of the decedent. The trial court decided the point of controversy in favor of Luz Lopez de Bueno, and Margarita Lopez appealed. The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas Rodriguez executed his last will and testament, in the second clause of which he declared:jgc:chanrobles.com.ph " I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno."cralaw virtua1aw library Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially declared incapable of taking care of himself and had been placed under the care of his cousin Vicente F. Lopez, as guardian. On January 7, 1924, or only four days after the will above-mentioned was made, Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At the time the will was made Vicente F. Lopez had not presented his final accounts as guardian, and no such accounts had been presented by him at the time of his death. Margarita Lopez was a cousin and nearest relative of the decedent. The will referred to, after having been contested, has been admitted to probate by judicial determination (Torres and Lopez de Bueno v. Lopez, 48 Phil., 772). Our discussion of the legal problem presented should begin with article 753 of the Civil Code which in effect declares that, with certain exceptions in favor of near relatives, no testamentary provision shall be valid when made by award in favor of his guardian before the final accounts of the latter have been approved. This provision is of undoubted application to the situation before us; and the provision made in the will of Tomas Rodriguez in favor of Vicente F. Lopez must be considered invalid, owing to the incapacity of the latter. But it is obvious that the incapacity of Lopez was not any general incapacity on his part, but a special incapacity due to the accidental relation of guardian and ward existing between the parties. We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in effect, that accretion takes place in a testamentary success when two or more persons are called to the same inheritance or the same portion thereof without special designation of shares; and, secondly, when one of the persons so called dies before the testator or renounces the inheritance or is disqualified to receive it. In the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the same inheritance without special

designation of shares. In addition to this, one of the persons named as heir has predeceased the testator, this person being also disqualified to receive the estate even if he had been alive at the time of the testators death. This article (982) is therefore also of exact application to the case in hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided half which she would have received in conjunction with her father if he had been alive and qualified to take, but also the half which pertained to him. There was no error whatever, therefore in the order of the trial court declaring Luz Lopez de Bueno entitled to the whole estate. The argument in favor of the appellant supposes that there has supervened a partial intestacy with respect to the half of the estate which was intended for Vicente F. Lopez and that this half has descended to the appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In this connection attention is directed to article 764 of the Civil Code wherein it is declared, among other things, that a will may be valid even though the person instituted as heir is disqualified to inherit. Our attention is next invited to article 912 wherein it is declared, among other things, that legal succession takes place if the heir dies before the testator and also when the heir instituted is disqualified to succeed. Upon these provisions an argument is planted conducting to the conclusion that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals named as heirs in the will was disqualified that as a consequence Margarita Lopez is inherit the share of said disqualified heir. We are of the opinion that this contention is untenable the appellee clearly has the better right. In applying the provisions of the Code it is the duty of the court to harmonize its provisions as far as possible, giving due effect to all; and in case of conflict between two provisions the more general is to be considered as being limited by the more specific. As between articles 912 and 983, it is obvious that the former is the more general of the two, dealing, as it does with the general topic of intestate succession, while the latter is more specific, defining the particular conditions under which accretion takes place. In case of conflict, therefore, the provisions of the former article must be considered limited by the latter. Indeed, in subsection 3 of article 912 the provision with respect to intestate succession is expressly subordinated to article 983 by the expression "and (if) there is no right of accretion." It is that the same express qualification is not found in subsection 4 of article 912, yet it must be so understood, in view of the rule of interpretation above referred to, by which the more specific is held to control the general. Besides, this interpretation supplies the only possible means of harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords independent proof that intestate succession to a vacant portion can only occur when accretion is impossible. The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912, intestate ,succession occurs when the heir instituted is disqualified to succeed (incapaz de suceder), while, under the last provision in paragraph 2 of article 982, accretion occurs when one of the persons called to inherit under the will is disqualified to receive the inheritance (incapaz de recibirla). A distinction is then drawn between incapacity to succeed incapacity to take, and it is contended that the disability of Vicente F. Lopez was such as to bring the case under article 912 rather than 982. We are of the opinion that the case cannot be made to turn upon so refined an interpretation of the language of the Code, and at any rate the disability to which Vicente F. Lopez was subject was not a general disability to succeed but an accidental incapacity to receive the legacy, a consideration which makes a case for accretion rather than for intestate succession. The opinions of the commentators, so far as they have expressed themselves on the subject, tend to the conclusion that the right of accretion with regard to portions of an inheritance left vacant by the death or disqualification of one of the heirs or his renunciation of the inheritance is governed by article 912, without being limited, to the extent supposed in appellants brief, by the provisions of the Code relative to intestate succession (Manresa, Comentarios al Codigo Civil Espaol, 4th ed., vol. VII, pp. 310, 311; id., 34; 13 Mucius

Scaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche: "It is to be understood that one of the coheirs or colegatees fails if nonexistent at the time of the making of the will, or if he renounces the inheritance or legacy, if he dies before the testator, if the condition be not fulfilled, or if he becomes otherwise incapacitated. . . ." (Diccionario de Legislacion y Jurisprudencia, vol. I, p. 225.) In conclusion it may be worth observing that there has always existed both in the civil and in the common law a certain legal intendment, amounting to a mild presumption, against partial intestacy. In Roman law, as is well known, partial testacy was not allowed and there has remained in the derived systems a presumption against it, a presumption which has its basis in the supposed intention of the testator. The judgment appealed from will be affirmed, and it is so ordered, with costs against the Appellant.

[G.R. No. L-6395. June 30, 1954. ] JOSE YNZA, Plaintiff-Appellant, v. HUGO P. RODRIGUEZ, ET AL,., Defendants-Appellees. Mariano A. Aguilar for Appellant. Benjamin H. Tirol and Hugo P. Rodriguez for Appellees. SYLLABUS 1. TESTAMENTARY SUCCESSION; ACCRETION; WHERE PERSONS CALLED TO INHERITANCE SURVIVED TESTATORS, CONDITION IMPOSED REGARDED AS CHARGE OR TRUST; CONDITION MAY NOT BE ENFORCED AT THE INSTANCES OF STATE BUT BY INTERESTED LEGATEES; LEGATEE WHO HAD VIOLATED CONDITION AND RENOUNCED RIGHT UNDER IT, BARRED. D left a will Exh. "A" naming his three adulterous children, J.Y. and M. as legatees. The properties involved were situated in Iloilo City and the Province of Negros Occidental. This will provided, among others, that "so alguno de mis legatarios arriba nombrados, falleciere sin sucesion entonces la parte a la legada accrecera a la porcion o porciones correspondienteds a los demas legatarios que le sobrevivan." M sold her whole share to her colegatees, leaving J and Y as sole co-owners. After the project of partition was approved, Y sold to his co-legatee and co-owner J his one-half share of the estate situated in Iloilo City. J died without issue, leaving a will, whereby she bequeathed all her properties in Iloilo City to the Staub sisters and her properties in Negros Occidental, one-forth to Y and the remaining three-fourths to other legatees. With the conformity of all the legatees, including Y, a project of partition was submitted and approved by the court, and the properties were distributed among the legatees. Y now insists that by virtue of the condition imposed in their fathers will Exhibit "A" he became the absolute owner of all the properties left by D. Held: Under Article 982 of the old Civil Code, there is right of accretion in testamentary succession when two or more persons are called to the same inheritance or to the same portion thereof without special designation of parts, and one of the persons so called dies before the testator or renounces the inheritance or to be incapable of receiving it. In the present case, the three persons called to the inheritance survived the testator. However, the condition imposed in the will of D might possibly be regarded as a charge or trust limiting the ownership and disposition of the one-third allotted to each of the legatees. The intention of the testator might have been to prevent the property from going into the hands of strangers and at the same time giving a right to surviving legatee the right to receive intact the onethird portion of the legatee who dies without issue. This right may naturally be renounced or waived by any of the legatees who stands to benefit by it; and as to the condition that none of the properties or estate of D should go into the hands of strangers, since it is a condition not entirely unselfish, and it is not affected with the public interest but on the contrary, is rather against public policy in that it limits the right of ownership and free disposal of private property, said condition may not be enforced at the instance of the State. It may be enforced only by the legatees who have an interest in its enforcement; but surely not by the legatee who from the very beginning not only had violated the condition but had renounced his right to it.

Dionisio Ynza, of Spanish descent, single, and a resident of Iloilo City, died on September 3, 1932, leaving a will (Exhibit A) which was probated on October 6, 1932, in Special Proceedings No. 2025. He left extensive properties, real and personal, in the City of Iloilo and in the Province of Negros Occidental. The paragraphs of his will pertinent to and involved in the present case are the following: Cuatro. Ordeno que todos mis bienes arriba relacionados y los que posea en el dia de mi muerte, asi como todo el dinero efectivo que encuentre en caja, en los Bancos depositados en mi nombre, los azucares y otros bienes y derechos que me correspondensean repartidos en la siguiente forma: 1. Lego a Julia Ynza, solera de 25 aos de edad, una tercera parte de todos mis bienes y derechos. 2. Lego a Jose Ynza, soltero de 23 aos de edad, una tercera parte de todos mis bienes y derechos. 3. Lego a Maria Cristina Ynza de 21 aos de edad, una tercera parte de todos mis bienes y derechos. Quinto. Es mi voluntad que si alguno de mis legatarios arriba nombrados, falleciere sin sucesion entonces la parte a el legada acrecera a la porcion o porciones correspondiente a los demas legatarios que le sobrevivan. The will designated one Enrique Pijuan as executor and the probate court appointed plaintiff-appellant Jose Ynza as co-administrator. Subsequently, however, because of ill-health Pijuan resigned as executor and Jose Ynza remained sole administrator of the estate. It might be stated incidentally that the three legatees Julia Ynza, Jose Ynza and Maria Cristina Ynza were, according to the record, adulterous children of the testator Dionisio Ynza, said to be children by different married women. The fact that in his will Dionisio Ynza affirmed that he was a bachelor and he did not mention any blood relationship with his three legatees lends support to this fact of illegitimacy of said three children. In the month of December, 1932, about three months after the death of the testator and after the will was probated, one of the children and legatees, Maria Cristina Ynza who was then residing in Spain, came to the Philippines with her husband. Inasmusch as she wanted to keep her residence in Spain, she decided to sell as in fact she sold her share of one-third of all the estates of Dionisio Ynza, to her co-legatees Julia Ynza and Jose Ynza, for the sum of P118,000, thereby leaving Jose and Julia sole co-owners of said estates. A project of partition (Exhibit B) was submitted by Jose Ynza as administrator and it was approved by the court on January 14, 1933 (Exhibit D). On April 24, 1934, Jose Ynza sold to his co-legatee and co-owner Julia his one-half share of the estate situated in the City of Iloilo as a result of which, he remained half co-owner only of the properties situated in Negros Occidental. Julia Ynza died without issue in Iloilo on November 22, 1949, leaving a will (Exhibit E) which as probated on January 9, 1950, in Special Proceedings No. 652 of the Court of First Instance of Iloilo. In said will Julia left all her properties, real and personal, in the City of Iloilo to the Sisters Sofia Staub and Claudia Staub with a proviso that they have under their care her protegee Carmen Danuya, and that upon her attaining majority she be given the sum of P5,000 by the executor. Her properties situated in Negros Occidental were disposed of thus: A Jose Ynza lego Una Cuarta Parte; a los hijos de Maria Cristina Ynza lego Una Cuarta Parte; a Maria Luisa Lahorra Cuarte Parte, de todas mis propiedades ubicadas en la provincia de Negros Occidental, con todos sus mejoras, que mas specificamente se mencionan mas arriba.

One Jugo P. Rodriguez was appointed executor, and as regards the properties in Negros Occidental, he was appointed trustee in the following words: Con el fin que los bienes que dejo, ubicados en la provincia de Negros Occidental los cuales han sufrido grandes daos durante la pasada guerra, pueden ser rehabilitados, organizados y administrados debvidamente, al efecto de ponerlos en buen estado economico antes de ser distribuidos a mis legatarios o fideiconmisarios, es mi voluntad que se conserven dichos bienes en estado de fidelcomiso por espacio de 15 aos ... . With the approval of Jose Ynza and his co-legatees under the will of Julia, Hugo P. Rodriguez qualified as executor of the will and as trustee of the properties in Negros Occidental, and with the conformity of the legatees, including Jose Ynza, he filed a motion for the declaration of heirs and for the approval of the subject of partition, which project was approved by the court which ordered the distribution of the properties among the legatees (Exhibit 9 and 10). Later, in a motion for re-consideration (Exhibit 11) Jose Ynza for himself and for the children of Maria Cristina Ynza, questioned the propriety of the appointment of Hugo P. Rodriguez as trustee and he asked the court to order him to deliver to the movant Jose Ynza his one-fourth portion of the 1/2 of the real properties in Negros Occidental, left by the deceased Julia Ynza as well as the One-fourth portion corresponding to the children of Maria Cristina Ynza. On December 22, 1950, Jose Ynza filed Civil Case No. 1855 of the Court of First Instance of Negros Occidental against Jugo P. Rodriguez as executor of the will of Julia Ynza and as guardian ad litem of his daughter Aida Milagros Rodriguez, Jose Lahorra as guardian ad litem of his daughter Maria Luisa Lahorra, and Regina Lacambra as guardian ad litem of Alicia Ortega Ynza and Maria Rosa Ortega-Ynza (children of Maria Cristina Ynza), alleging that he (Jose Ynza) was the absolute owner of one-half pro indiviso with the late Julia Ynza of the three haciendas Nervion, Victoria-Ynza and Sta. Filomena situated in Negros Occidental as well as one-fourth of the one-half belonging to the estate of Julia Ynza or a total of five-eight, and that as such owner of five-eight he had the right to demand the partition of said three haciendas, and since it was not possible to divide or sell said properties without prejudicing the interests of the parties, it was advisable that said haciendas be ceded to one of the legatees who could pay to his or her co-legatees the amount or value of their respective shares, and that for this purpose three commissioners be appointed to fix said amount. The defendants answered the complaint expressing conformity to the partition of the properties in Negros Occidental and even to the appointment of the commissioners should the parties be unable to come to an agreement regarding partition. The court appointed three commissioners who later filed their report (Exhibit 12-F) and a project of partition whereby each of the three haciendas were divided into two parts, one to pertain to Jose Ynza and the other to the estate of Julia Ynza. In the course of the hearing of the case and the report of the commissioners, plaintiff Jose Ynza moved for the sale at public auction of at least one of the haciendas for the reason that partition of the same would disfigure the hacienda and would result in the reduction of its value. On September 4, 1951, the court decided the case approving the report of the commissioners, except that portion referring to personal properties, the court leaving their partition to the parties to decide. The portion alloted to Jose Ynza according to the project of partition prepared by the commissioners was adjudged and decreed to him and the portion alloted to the estate of Julia Ynza was adjudge and decreed to said estate "to be held and enjoyed by the legatees and assigns subject to the will left by the deceased Julia Ynza." Plaintiff tried to appeal this decision but due to his failure to file the necessary appeal bond the decision became final and on November 25, 1951, a writ of execution (Exhibit 12-T) was issued and the writ was executed on February 27, 1952, whereby Emilio Lacambra in representation of Jose Ynza delivered to the Provincial Sheriff the properties belonging to the estate of Julia Ynza situated in the Province of Negros Occidental (Exhibit 12-V). In the meantime, Jose Ynza as plaintiff in case G.R. No. L-1957 filed mandamus proceedings in the Supreme Court to compel the court in Civil Case No. 1855 to sell at public auction the properties subject to the partition proceedings. His petition for mandamus was later dismissed at his own instance by resolution of this court of November 23, 1951 (Exhibit 23).

In an attempt to stop the Negros Occidental court from executing its judgment, plaintiff filed prohibition proceedings in the Supreme Court against Judge Jose Teodoro as Judge of the Court of First Instance of Negros Occidental, the clerk of said Court, the Register of Deeds of that province and Hugo P. Rodriguez as administrator of the estate of Julia Ynza, in case G. R. No. L-5330, but the petition was summarily dismissed for lack of merit by resolution of this court of December 18, 1951. Then plaintiff Jose Ynza instituted the present action in the court of First Instance of Iloilo, Civil Case No. 2281, against Hugo P. Rodriguez as administrator of the estate of Julia Ynza, Sofia Staub, Claudia Staub, Jose Lahorra as guardian ad litem of his daughter Maria Luisa Lahorra; Alfredo Javellana and Gloria Salvador; Rosario A. de Rodriguez as guardian ad litem of her minor daughter Aida Milagros Rodriguez; Maria Cristina Ynza for herself and as guardian ad litem of her minor daughters Alicia and Maria Rosa Ortega-Ynza; and Sofronio N. Flores and Cirilo Abrasia, to declare himself absolute owner of all the properties left by Julia Ynza including their products, by virtue of the right of accretion established in the conditional legacy by Dionisio Ynza under paragraph 5 of his will (Exhibit A). For purposes of ready reference we again reproduce said paragraph 5 of the will (Exhibit A), to wit: QUINTO. Es mi voluntad que si alguno de mis legatarios arriba nombrados, falleciere sin sucesion, entonces la parte a el legada acrecera a la porcion o porciones correspondientes a los demas legatarios que le sobrevivan. After hearing, the Court of First Instance of Iloilo presided over by Judge Manuel Blanco held that the three legatees Jose Ynza, Julia Ynza and Maria Cristina Ynza had not respected but on the contrary had violated the wish of their father contained in paragraph 5 of his will, because they had been buying and selling the whole or part of the legacies received by them; as for instance Maria Cristina Ynza sold her share to Jose and Julia for P118,000 and Jose Ynza sold his one-half share of the properties situated in Iloilo left by his father to his colegatee Julia Ynza. Again, Jose Ynza had agreed to the provision of the will of Julia Ynza regarding the distribution of her properties and also agreed to the project of partition on the basis of said will whereby said properties were given to other persons other than Jose Ynza and Maria Cristina Ynza despite the fact that Julia Ynza died without issue. As a result the trial court absolved the defendants from the complaint, with costs. Jose Ynza is appealing from that decision. We are in full accord with the lower court that the attitude and conduct of the plaintiff-appellant in this case is far from consistent with the condition imposed in paragraph 5 of his father's will. He was the first to violate said condition or provision. Furthermore, by his conduct he led his co-legatees under the will of Julia Ynza to believe that said condition need not be followed, and that consequently, although Julia Ynza died without issue she could dispose of all her property by will; that said disposition by Julia's will was valid and could be carried out, and that he (Jose Ynza) was agreeable to getting only one-fourth of the properties of Julia Ynza situated in Negros Occidental and nothing from the properties situated in the City of Iloilo. Going back to this fifth paragraph of the will of Dionisio Ynza, it may not be considered as accretion as apparently contemplated by the testator by his employment of the word "accrecera". Under the old Civil Code, Article 982 thereof, there is right of accretion in testamentary succession when two or more persons are called to the same inheritance or to the same portion thereof without special designation of parts, and one of the persons so called die before the testator or renounces the inheritance or be incapable of receiving it. In the present case, the three persons called to the inheritance, namely, Jose, Julia, and Maria Cristina, survived the testator. However, the condition imposed in paragraph 5 of the will of Dionisio Ynza might possibly be regarded as a charge or trust limiting the ownership and disposition of the 1/3 portion alloted to each of the legatees. The intention of the testator might have been as contended by plaintiff-appellant to prevent the property from going into the hands of strangers and at the same time giving a right to the surviving legatee or legatees the right to receive intact the one-third portion of the legatee who dies without issue. This right may naturally be renounced or waived by any of the legatees who stand to benefit by it; and as to the condition that none of the properties or estate of Dionisio Ynza should go into the hands of strangers, since it is a condition not entirely unselfish, and it is not affected with public interest but on the contrary is rather against public policy in

that in limits the rights of ownership and free disposal of private property, said condition may not be enforced at the instance of the State. It may be enforced only by the legatees who have an interest in its enforcement; but surely not by the legatee who from the very beginning not only had violated that condition but had renounced his right to it. Under the condition imposed by paragraph 5 of the will of Dionisio Ynza, it may be supposed that in order to carry out the condition that the portion of the legatee dying without issue should go to his surviving co-legatees, none of the legatees may dispose of his one-third portion in his lifetime; and yet, both Jose Ynza and Julia Ynza not only allowed Maria Cristina to dispose of and sell her legacy of one-third portion, contrary to the provision of the will of their father but they (Jose and Julia) bought that third portion of Maria Cristina. By so doing they violated the wish of their father contained in his will. They also renounced their right to inherit or receive Maria Cristina's one-third portion should she die without issue, a possibility at the time. After Jose Ynza who had become one-half co-owner with his sister Julia Ynza of the estate left by their father Dionisio Ynza by reason of their purchase of the legacy given to their sister Maria Cristina, he (Jose Ynza) again violated the condition contained in paragraph 5 of the will by selling his one-half share of the state situated in the City of Iloilo. Lastly, upon the death of Julia Ynza and upon the disposition of her properties under her will, giving all her properties in Iloilo to the Sisters surnamed STAUB and her properties in Negros Occidental in the proportion of three-fourth to strangers and only one-fourth to Jose Ynza, said disposition again constituted a violation of the condition imposed in the will of their father Dionisio Ynza and plaintiffappellant not only consented to said violation but he also agreed to the distribution of the property by accepting his share of one-fourth of the properties of Julia in Negros Occidental and agreed to the project of partition and distribution in favor of other persons. Not only this; in the partition proceedings held in the court of Negros Occidental, first he (Jose Ynza) proposed that instead of partition, all the properties of the estate of Julia in that province be given to one of the legatees who would then pay in cash the portion corresponding to the other legatees. This proposition was also a violation of the provision of the will because the whole estate may go to strangers, contrary to the intention of the testator Dionisio Ynza. Later, he proposed the sale of the estate of Julia Ynza in Negros Occidental and reiterated this proposition in the mandamus proceedings initiated by him in the Supreme Court to sell said properties at public auction, all contrary to the condition contained in paragraph 5 of his father's will. All this conduct and attitude of plaintiff-appellant is hardly consistent with his theory of the enforcement of the provisions of paragraph 5 of his father's will. He led the defendants herein to believe that the disposition of Julia's property according to her will and the distribution among her legatees was valid and proper. He is now estopped from claiming or maintaining otherwise. Furthermore, the decision of the Court of First Instance of Negros Occidental approving the project of partition and disposing of the properties involved in accordance with the project of partition has become final and executory. It has now acquired the status of res judicata. But plaintiff-appellant claims that at the time that he agreed to the partition of the properties in Negros Occidental he was unaware of the condition imposed in the will of his father. This contention is hardly tenable considering that fact that he must have been quite familiar with the contents of his father's will (Exhibit A), because he was the very person who had it probated by the court and afterwards he was appointed coadministrator with the executor of the will, and when said executor resigned, plaintiff-appellant was left as the sole administrator and the only one in charge of carrying out the provisions of the will. In view of the foregoing, denying the petition for injunction, the decision appealed from is hereby affirmed, with costs against plaintiff-appellant.

[G.R. No. 45248. April 18, 1939. ] In the matter of the will of the deceased Eugenia Zuiga del Rosario. VICENTE REYES VILLAVICENCIO, applicant-appellee, v. SANTIAGO QUINIO, ET AL., Oppositors-Appellants. Francisco G. Perez and Ilao & Enrique for Appellants. Vicente Reyes Villavicencio in his own behalf. SYLLABUS 1. WILL; DISPOSITION OF PROPERTIES FOR MASSES AND PIOUS WORKS. Considering the provisions of the will of the deceased E. Z. del R. in their entirety, her collateral relatives, not being forced heirs, are not entitled to succeed her as to the remainder of her properties, which does not exist, as to the naked ownership thereof. Said testamentary provisions, whose validity is not here questioned, should be complied with because the testatrix, not having forced heirs, may dispose of her properties as she did in her will, for

masses and pious works for the benefit of her soul and those of her relatives, as provided in article 741 of the civil Code. DECISION CONCEPCION, J.: Eugenia Zuiga del Rosario died in Batangas, Batangas, on December 19, 1934, leaving a will executed with all the legal formalities, which was probated on February 1, 1935, over the opposition of some relatives. The third clause of the said will translated from Tagalog into Spanish, reads as follows:jgc:chanrobles.com.ph "TERCERO: Declaro que tengo bienes inmuebles, muebles, semovientes, casa y camarin que se heredado de mis padres y hermanos y, no teniedo yo heredero forzoso como ya he dicho mas arriba, he dispuesto que mis citados bienes sean destinados solamente para la paz y felicidad de mi alma y de las de mis padres y hermanos, y tambien para el beneficio de la iglesia, en la manera siquiente:jgc:chanrobles.com.ph "Que el producto de los terrenos y las rentas de la casa y casmarin, se invertian en misas en la iglesi catolica apostolica romana de Batangas, Batangas, del modo que mas abajo se dispone, a saber:jgc:chanrobles.com.ph "(a) En sufragio de mi alma, se dira una misa todos los dias durante los tres aos consecutivos desde ni muerte y para los aos subsiguientes, dos misas al ao. "(b) Anualmente se diran dos misas: una en sufragio del alma de mi padre y otra del de mi madre que en vida se llamaron Juan del Rosario y Victoria Quinio. "(c) Anualmente se diran dos misas dedicadas, una al sufragio de mi abuelo Padre Mariano y otra al de su hermana llamada Maria. "(d) Una vez al ao se dira la correspondienten misa por el sufragio de cada uno de mis harmanos llamados Ignacio, Maria Asuncion, Placida, Maria Trinidad, Justiniana y vicente apellidados del Rosario, y "(e) Se diran anualmente una limosna de P10 a la Sagrande Virgen de este pueblo de Batangas, Batangas, y otra limosma, tambien de P10, a Santo Nio Patron de este mismo pueblo." Subsequently, Santiago Quino and twenty-eight relatives of the testatriz within the fifth degree in the collateral line, filed a motion with the conformity of the Bishop of lipa wherein, after stating how the said deceased Eugenia Zuiga del Rosario has disposed in her will of her properties by way of masses and alms, etc., they asked that they be declared heirs of said testarix charged with the duty to comply with its provisions, as to which compliance, so they stated, they had already reached an understanding with the Bishop of Lipa whereby the said movants, within ninety days from the adjudication to them of the properties constituting the inheritance, would deposit with the said Bishop the necessary amount to defray the masses for three years, and would likewise deposit in any bank designated for the purpose an amount the interest of which would be sufficient to cover the other expenses for the annul masses and alms ordained in the will. The executor Vicente Reyes

Villavicencio opposed the foregoing petition and the court denied the latter by its order of March 30, 1936. The movants appealed and assign the following alleged errors in their brief:jgc:chanrobles.com.ph "The lower court erred in finding that the entire property, and not only a part thereof, has been disposed of by the deceased in her will. The lower court erred in denying the oppositors-appellants their legal right to share in the property of the deceased. "The lower erred in not recognizing as proper and lawful under the circumstances, the compromise entered into by and between the Bishop of Lipa and the herein oppositors-appellants, with regards to the matter by which Paragraph III of the will may be carried out and given effect, it being understood that the said mutual understanding will best promote and safeguards the manifest and premordial intention of the testatrix."cralaw virtua1aw library The appellants contend that even after full compliance with the will of the testatriz, a substantial balance would still remain after deducting the necessary expenses for masses and alms and the amount of the allowance for support of Eulalia del Rosario, and excluding the legacy left to Ubaldo Magbuhat and Eugracio alegria. As to that balance, the appellants contend that the deceased Eugenia Zuiga del Rosario died partly intestate and that they are entitled to succeed her with respect to that part. Such contention is based on something entirely inconsistent with what the testatrix ordered in the third clause of her will. As will be seen, the appellants proceed on the false assumption that for every mass celebrated for the soul of the testatrix and those of her parents, brothers and sisters, something or a determinate amount from the fruits of her properties had to be given. Proceeding on this assumption, it is possible that the fruits of said properties would leave an excess which the testatrix has not disposed of. However, as we have stated, such an assumption is untenable because the testatrix has not provided that a certain amount be taken the fruits of her properties for the celebration of the masses ordered by her, but has said: "I have that may said properties be devoted only for the peace and happiness of my soul and those of my parents, brothers and sisters, and also for the benefit of the church, etc." ; and, continuing, she ordered "that the fruits of the lands and the income of the house and warehouse, be spent for masses. . . ." Hence, the testatrix has provided, not that something out of the fruits and income of her properties be paid for the masses which she has ordered to be celebrated for her soul and those of her parents, brothers and sisters, but that all the fruits of the lands and all the income be spent for masses. For this purpose, and doubtless foreseeing that the income of her properties would be insufficient to cover the amount of the masses and of its other provisions, the testatrix has ordered in the sixth and night paragraphs of her will that, if necessary, her properties be sold with leave of court. Considering the provisions of the will of the deceased Eugenia Zuiga del Rosario in their entirely, her collateral relatives not being forced heirs, are not entitled to succeed her as to the remainder of her properties, which does not exist, or as to the naked ownership thereof. Said testamentary provisions, whose validity is not here questioned, should complied with because the testatrix, not having forced heirs in the present case, may dispose of her properties for masses and pious works for the benefit of her soul, as provided in article 747 of the Civil Code. (6 Manresa, 6th ed., p. 24.) The circumstances that the appellants had a n understanding with the Bishop of Lipa as to show they (not the executor) were to comply with the provisions made by the testatrix after they had been declared heirs and after the properties left by the deceased relative had been adjudicated to them, does not support their contentions in

the slightest, because the Bishops intervention in this case cannot validate any arrangement calculated to defeat the testamentary provisions inasmuch as the testatrix did not leave anything to the Roman Catholic under the administration or supervision of the Bishop. The appealed order is affirmed with he costs of both instances to the appellants. So ordered.

[G.R. No. L-65800. October 3, 1986.] PARTENZA LUCERNA VDA. DE TUPAS, Petitioner-Appellant, v. BRANCH XLII of the HON. REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL, respondent, and TUPAS FOUNDATION, INC., private Respondent-Appellee. Abraham D. Caa for Petitioner-Appellant. Jose R. Edis for private Respondent-Appellee. SYLLABUS

1. CIVIL LAW; DONATION; LIMITATION ON PERSONS PREROGATIVE TO MAKE DONATION. A persons prerogative to make donations is a subject to certain limitations, one of which is that he cannot give by donation more than he can give by will (Art. 752, Civil Code). If he does, so much of what is donated as exceeds what he can give by will is deemed inofficious and the donation is reducible to the extent of such excess, though without prejudice to its taking effect in the donors lifetime or the donees appropriating the fruits of the thing donated (Art. 771, Civil Code). 2. ID.; SUCCESSION; COLLATION; PROPER IN CASE A DECEDENTS DONATION IS INOFFICIOUS. Donation made in violation of Art, 752 of the Civil Code is collationable, that is, its value is imputable into the heredity estate of the donor at the time of his death for the purpose of determining the lifetime of the forced or compulsory heirs and the freely disposable portion of the estate. This is true as well of donations to strangers as of gifts to compulsory heirs, although the language of Article 1061 of the Civil Code would seem to limit collation to the latter class of donations. And this has been held to be a long-established rule in Liguez v. Honorable Court of Appeals, Et. Al. 102 Phil. 577, 586, where this Court said: ". . . Hence, the force heirs are entitled to have the donation set aside in so far as inofficious: i.e., in excess of the portion of free disposal (Civil code of 1889, Articles 693, 645), computed as provided in Articles 818 and 819, and bearing in mind that collationable gifts under Article 818 should included gifts made not only in favor of the forced heirs, but even those made in favor of strangers, as decided by the Supreme Court of Spain in its decisions of 4 May 1899 and 16 June 1902. So that is computing the legitimes, the value of the property donated to herein appellant, Conchita Liguez, should be considered part of the donors estate, Once again, only the court of origin has the requisite data to determine whether the donation is inofficious or not."cralaw virtua1aw library 3. ID.; ID.; ID.; NOT PREVENTED BY THE FACT THAT THE DONATED PROPERTY NO LONGER ACTUALLY FORMED PART OF THE ESTATE OF THE DECEDENT. The fact, that the donated of the estate of the donor at the time of his death cannot be asserted to prevent its being brought to collation. Indeed, it is an obvious proposition that collation contemplates and particularly applies to gifts inter vivos. 4. ID.; ID.; NOT PREVENTED BY THE FACT THAT THE LAND DONATED WERE CAPITAL OR SEPARATE PROPERTY OF DONOR. The further fact the lots property of the donor is of no moments, because a claim of inofficiousness does not assert that the donor gave was not his, but that he gave more than what was within his power to give. 5. ID.; ID.; LEGITIMATE; ESTABLISHED RULES FOR THE DETERMINATION THEREOF. The rules established by the Civil Code for the determination of the legitime and, by extension, of the disposable portion. These rules are set forth in Articles 908, 909 and 910 of the Code, on the basis of which the following step-bystep procedure has been correctly outlined: (1) determination of the value of the property which remains at the time of the testators death; (2) determination of the obligations, debts, and charges which have to be paid out or deducted from the value of the property thus left; (3) the determination of the difference between the assets and the liabilities, giving rise to the hereditary estate; (4) the addition to the net value thus found, of the value, at the time they were made, of donations subject to cellation; and (5) the determination of the amount of the legitimates by getting from the total thus found the portion that the law provides as the legitimate of each respective compulsory heirs. Deducting the legitimes the net value of the hereditary estate leaves the freely disposable portion by which the donation in question here must be measured. If the value of the donation at the time it was made dose not exceed that difference, then it must be allowed to stand. But if it does, the donation is inoficious as to the excess and must reduced by the amount of said excess.

DECISION NARVASA, J.: Involved in this appeal is the question of whether or not a donation inter vivos by a donor now deceased is inofficious and should be reduced at the instance of the donors widow. Epifanio R. Tupas died on August 20, 1978 in Bacolod City, childless, leaving his widow, Partenza Lucerna, as his only surviving compulsory heir. He also left a will dated May 18, 1976, which was admitted to probate on September 30, 1980 in Special Proceedings No. 13994 of the Court of First Instance of Negros Occidental. Among the assets listed in his will were lots Nos. 837, 838 and 839 of the Sagay Cadastre, admittedly his private capital. However, at the time of his death, these lots were no longer owned by him, he having donated them the year before (on August 2, 1977) to the Tupas Foundation, Inc., which had thereafter obtained title to said lots. Claiming that said donation had left her practically destitute of any inheritance, Tupas widow brought suit against Tupas Foundation, Inc. in the same Court of First Instance of Negros Occidental (docketed as Civil Case No. 16089) to have the donation declared inofficious insofar as it prejudiced her legitime, therefore reducible." . . by one-half or such proportion as . . . (might be deemed) justified . . ." and." . . the resulting deduction . . ." restored and conveyed or delivered to her. The complaint also prayed for attorneys fees and such other relief as might be proper. The Trial Court did not see things her way. Upon the facts above stated, on which the parties stipulated, 1 said Court dismissed the complaint for lack of merit, rejecting her claim on several grounds, viz.:jgc:chanrobles.com.ph ". . . (1) Article 900 relied upon by plaintiff is not applicable because the properties which were disposed of by way of donation one year before the death of Epifanio Tupas were no longer part of his hereditary estate at the time of his death on August 20, 1978; (2) the donation properties were Epifanios capital or separate estate; and (3) Tupas Foundation, Inc. being a stranger and not a compulsory heir, the donation inter vivos made in its favor was not subject to collation under Art. 1061, C.C." 2 The Trial Court is in error on all counts and must be reversed. A persons prerogative to make donations is subject to certain limitations, one of which is that he cannot give by donation more than he can give by will (Art. 752, Civil Code). 3 If he does, so much of what is donated as exceeds what he can give by will is deemed inofficious and the donation is reducible to the extent of such excess, though without prejudice to its taking effect in the donors lifetime or the donees appropriating the fruits of the thing donated (Art. 771, Civil Code). Such a donation is, moreover, collationable, that is, its value is in putable into the hereditary estate of the donor at the time of his death for the purpose of determining the legitime of the forced or compulsory heirs and the freely disposable portion of the estate. This is true as well of donations to strangers as of gifts to compulsory heirs, although the language of Article 1061 of the Civil Code would seem to limit collation to the latter class of donations. And this has been held to be a long-established

rule in Liguez v. Honorable Court of Appeals, Et Al., 4 where this Court said:jgc:chanrobles.com.ph ". . . Hence, the forced heirs are entitled to have the donation set aside in so far as inofficious: i.e., in excess of the portion of free disposal (Civil Code of 1889, Articles 636, 645), computed as provided in Articles 818 and 819, and bearing in mind that `collationable gifts under Article 818 should include gifts made not only in favor of the forced heirs, but even those made in favor of strangers, as decided by the Supreme Court of Spain in its decision of 4 May 1899 and 16 June 1902. So that in computing the legitimes, the value of the property donated to herein appellant, Conchita Liguez, should be considered part of the donors estate. Once again, only the court of origin has the requisite data to determine whether the donation is inofficious or not." 5 The fact, therefore, that the donated property no longer actually formed part of the estate of the donor at the time of his death cannot be asserted to prevent its being brought to collation. Indeed, it is an obvious proposition that collation contemplates and particularly applies to gifts inter vivos. 6 The further fact that the lots donated were admittedly capital or separate property of the donor is of no moment, because a claim of inofficiousness does not assert that the donor gave what was not his, but that he gave more than what was within his power to give. Since it is clear that the questioned donation is collationable and that, having been made to a stranger (to the donor) it is, by law 7 chargeable to the freely disposable portion of the donors estate, to be reduced insofar as inofficious, i.e., it exceeds said portion and thus impairs the legitime of the compulsory heirs, in order to find out whether it is inofficious or not, recourse must be had to the rules established by the Civil Code for the determination of the legitime and, by extension, of the disposable portion. These rules are set forth in Articles 908, 909 and 910 of the Code, on the basis of which the following step-by-step procedure has been correctly outlined:chanrob1es virtual 1aw library (1) determination of the value of the property which remains at the time of the testators death; (2) determination of the obligations, debts, and charges which have to be paid out or deducted from the value of the property thus left; (3) the determination of the difference between the assets and the liabilities, giving rise to the hereditary estate; (4) the addition to the net value thus found, of the value, at the time they were made, of donations subject to collation; and (5) the determination of the amount of the legitimes by getting from the total thus found the portion that the law provides as the legitime of each respective compulsory heir. 8 Deducting the legitimes from the net value of the hereditary estate leaves the freely disposable portion by which the donation in question here must be measured. If the value of the donation at the time it was made does not exceed that difference, then it must be allowed to stand. But if it does, the donation is inofficious as to the excess and must be reduced by the amount of said excess. In this case, if any excess be shown, it shall be returned or reverted to the petitioner-appellant as the sole compulsory heir of the deceased Epifanio R. Tupas.cralawnad For obvious reasons, this determination cannot now be made, as it requires appreciation of data not before this Court and may necessitate the production of evidence in the Court a quo.

WHEREFORE, the appealed decision is reversed and petitioner-appellant Partenza Lucerna Vda. de Tupas is adjudged entitled to so much of the donated property in question, as may be found in excess of the freely disposable portion of the estate of Epifanio B. Tupas, determined in the manner above-indicated. Let the case be remanded to the Trial Court for further appropriate proceedings in accordance with this decision. SO ORDERED.

[G.R. No. L-7385. May 19, 1955. ]

QUIRICO L. SATURNINO, Petitioner, v. FELIZA LUZ PAULINO, MAXIMO DALEJA, JUANA LUCAS, NEMESIO LUCAS, DONATA GUILLERMO, and COURT OF APPEALS, Respondents. Domingo, Valenciano & Aguinaldo for Petitioner. Ruiz, Ruiz, Ruiz & Ruiz for Respondent. SYLLABUS 1. REGAL RESUMPTION; CO-HEIRS MAY EXERCISE RIGHT OF REDEMPTION BEFORE PARTITION. If either of the heirs should sell his hereditary rights to a stranger before the partition, any or all of heirs may be surrogated to the rights of the purchaser by reimbursing him for the purchase price, provided it be done within the period of one month, to be counted from the time they were informed thereof. 2. ID.; ID.; NATURE OF HEIRS RIGHT OF INHERITANCE. Pending partition, adjudication or assignment to the heirs of the deceased testator, their right of inheritance is not merely in the nature of hope for pursuant to Article 657 of the Civil Code Spain, which was in force in the Philippines at the time of the death of the testator "the rights to the succession of the person are transmitted from the moment of his death" and the heirs pursuant to Article 661 of the same code "succeed to the deceased in all his rights and obligations by the mere fact of his death." The person concerned is an heir, and he may exercise his rights as such, from the very moment of the death of the decedent. One of these rights is that of redemption under Article 1067 of the aforesaid code (Article 1088 of the Civil Code of the Philippines). 3. APPEAL AND ERROR; FAILURE OF COURT OF APPEALS TO PASS ISSUES RAISED AND ABSENCE OF FINDINGS OF FACTS. Where the Court of Appeals has not passed upon the issues raised in the appeal and its decision does not state the facts essential to the determination of these issues, said decision should be reversed and the records of the case should be remanded to said Court for further proceedings. DECISION CONCEPCION, J.: This is an appeal by certiorari from a decision of the Court of Appeals. The pertinent facts are:chanrob1es virtual 1aw library Upon the death of Jaime Luz Paulino, on February 10, 1937, he was survived by his children Timoteo Esteban, Macario and Feliza, all surnamed Luz Paulino and a grandson-Quirico L. Saturnino, son of his deceased daughter Antonia Luz Paulino. Among the properties left by Jaime Luz Paulino is a house and lot, situated in Barrio No. 13, municipality of Laoag, province of Ilocos Norte, and more particularly known as Lot No. 11366 of the Laoag Cadastre. On October 22, 1945, his daughter Feliza Luz Paulino executed a deed of absolute sale of said property in favor of the spouses Maximo Daleja and Juana Lucas and Nemesio Lucas and Donata Guillermo, for the aggregate sum of P1,200.00. In the language of the decision of the Court of Appeals.

"As said sale was made without the knowledge or consent of Quirico L. Saturnino who, according to him, learned of it in the early morning of October 23, 1945 (Exhs. B and I), and being desirous of exercising his right of subrogation as co-heir of the vendor, on October 23, 1945, and again on the 29th of that month, in the presence and with the assistance of his lawyer, offered verbally and in writing to the vendees to return then and there to them, in actual cash, 4/5 of the purchase price of said property, together with the expenses incurred by them in the preparation of the document, and tendered to them in their respective houses in Laoag, Ilocos Norte, written copies of the offer and the money in actual cash, Philippine currency, but defendants Juana Lucas and Donata Guillermo, for themselves and in representation of their respective husbands who were absent, refused acceptance thereof. For this reason on the following day, October 30, 1945, Quirico L. Saturnino instituted this action in the Court of First Instance of Ilocos Norte against the defendants mentioned in the caption hereof, depositing with the Clerk of said Court the sum of P960, Philippine currency, for delivery to the defendant vendee by way of reimbursement, together with the amount of P50 Philippine currency, to cover the expenses incurred in the preparation of the deed of sale, and stating that he was ready and willing to deposit other additional sums that the court may deem just and necessary. On these averments plaintiff prayed in the complaint that judgment be rendered in his favor and against the defendants:jgc:chanrobles.com.ph "a. Declaring the sale made by defendant Feliza Luz Paulino to her co-defendants illegal with respect to onefifth of the lot and to declare said one-fifth undivided share of the plaintiff; "b. To order the defendants Maximo Daleja, Juana Lucas, Nemesio Lucas and Donato Guillermo to accept and receive from the clerk of court the sum of P690 corresponding to the reimbursement of the price paid by them for four-fifths (4/5) of the lot which their co-defendant Feliza Luz Paulino could legally convey; and the additional sum of P50 to cover their expenses in the preparation of the deed of sale; "c. Ordering the defendants Maximo Dalaja, Juana Lucas, Nemesio Lucas and Donata Guillermo to execute a deed of reconveyance of what they could legally buy from their co-defendant Feliza Luz Paulino of the lot in question, in favor of the herein plaintiff; and "d. Ordering the aforesaid defendants to pay damages in the sum of P1,000 annually to plaintiff until the reconveyance is effected, and an additional sum of P1,000 as damages to be paid by all of the defendants for their malicious acts, and the costs of suit. "For such other remedies and relief just and equitable in the premises. "On November 14, 1945, defendants answered the complaint with counterclaim, which was amended on December 12 of the same year, wherein it is alleged, among other things, that on April 25, 1937, at the municipality of Laoag, province of Ilocos Norte, all their inheritance from the deceased Jaime Luz Paulino had been divided in accordance with Section 596 of the Code of Civil Procedure and the last verbal wish of the decedent before his death, giving the residential lot in question together with the house of strong materials constructed thereon to Feliza Luz Paulino as her exclusive and only share, and leaving her brothers, Timoteo, Esteban and Macario, and their nephew Quirico Saturnino to divide all the agricultural lands among themselves, which division was duly effected. Defendants Maximo Daleja, Juana Lucas, Nemesio Lucas and Donata Guillermo allege that they are engaged in business and purposely bought said lot to erect thereon a camarin for a rice mill and for use as a warehouse of rice, bagoong, coconuts and other articles of commerce and to deposit logs and lumber, and that because of their inability to realize this plan due to the action of the plaintiff, they will suffer damages in the sum of P3,000 yearly until this case is terminated. Wherefore all the defendants pray the court:jgc:chanrobles.com.ph

"1. To dismiss the complaint; "2. To declare Feliza Luz Paulino as the exclusive owner of the whole lot in question; "3. To declare the sale made by Feliza Luz Paulino of the whole lot in question to her co-defendants valid and in full force and effect; "4. To order the plaintiff to pay three thousand pesos (P3,000) annually until this case is terminated and the further sum of one thousand pesos (P1,000) for the malicious acts of the plaintiff and the costs of this suit; and "5. Any other relief just and equitable." (Roll, pp. 17-20). This case was docketed as Civil Case No. 23 of the Court of First Instance of Ilocos Norte. Meanwhile, or on November 19, 1945, Quirino L. Saturnino had filed, with said court, a petition, which was docketed as Special Proceeding Case No. 37, for the probate of the will and testament of Jaime Luz Paulino. Although, at first, all of the other heirs objected to said petition, on June 30, 1949, they eventually withdrew their opposition thereto, and the probate of the will was allowed by an order dated July 6, 1949. Said will provided that the property in dispute in Case No. 23, be distributed, share and share alike among the heirs of the testator. On or about March 10, 1950, the defendant in said Case No. 23 respondents herein filed a supplemental answer alleging that plaintiff petitioner herein has no legal capacity to sue, because the property in litigation therein is part of the estate which is the subject matter of Case No. 37, in which an administrator was appointed but no adjudication had, as yet, been made. In due course, a decision was rendered in Case No. 23, on December 2, 1950, the dispositive part of which reads as follows:jgc:chanrobles.com.ph "FOR ALL THE FOREGOING CONSIDERATIONS, the Court renders judgment declaring the sale made by the defendant Feliza Luz Paulino to her co- defendants null and void with respect to one-fifth (1/5) of the lot in question and the plaintiff is declared owner thereof as his undivided share; that the defendants are ordered to receive from the Clerk of Court the sum of P960 corresponding to the reimbursement of the price paid by them for four-fifths (4/5) of the lot in question which their co-defendant Feliza Luz Paulino could legally convey to them, and to execute a deed of reconveyance in favor of the plaintiff." (Roll, pp. 20-21). On appeal from this decision, the defendants contended in the Court of Appeals, that the lower court had erred:jgc:chanrobles.com.ph "1. In net dismissing the complaint in so far as the recovery of one fifth undivided interest in the lot in question is concerned; "2. In not finding that there was an agreement between the defendant Feliza Luz Paulino on one hand and Esteban, Timoteo and Macario Luz Paulino on the other by virtue of which the house and lot in question were given and delivered to Feliza Luz Paulino; "3. In not finding that the plaintiff-appellee fully confirmed the above mentioned agreement;

"4. In not upholding the validity of said agreement duly confirmed by the plaintiff-appellee and in not giving its effects and efficacy; "5. In declaring the sale of the lot in question invalid with respect to one-fifth share of the appellee; "6. In holding that there exists co-ownership in the lot between the appellee and appellants-purchasers; and "7. In ordering the appellants-purchasers to let redemption prayed for by the appellee." (Roll p. 21). None of these questions was, however, decided by the Court of Appeals, which found it necessary to pass instead, upon what it regarded a "prejudicial question." Said the Court of Appeals:jgc:chanrobles.com.ph "Before delving into the merits of the appeal, we have first to pass upon a prejudicial question. There is no dispute in this case that the properties left by the late Jaime Luz Paulino are in custodia legis, for they are subject to testate proceedings in said Civil Case No. 37 which is still pending in the Court of First Instance of Ilocos Norte. Although the will of the testator has been allowed, no settlement of accounts has been effected, no partition of the properties left by the decedent has been made, and the heirs have not legally received or been adjudicated or assigned any particular piece of the mass of their inheritance. This being the case, and pending such partition, adjudication or assignment to the heirs of the residue of the estate of the testator Jaime Luz Paulino, none of his heirs can properly allege or claim to have inherited any portion of said residue, if there be any, because his or her right of inheritance remains to be in the nature of hope. Consequently, neither Feliza Luz Paulino, nor any of her coheirs, can legally represent the estate of the decedent, or dispose as his or hers of the property involved in this case, included as item No. 20 of the inventory (Exh. 4), or institute any ease in court to demand any part of such estate as his own, or claim any right of legal redemption as coheir in the sale of any piece of the mass of the inheritance that may have been disposed of by any of the heirs. In the case at bar, even if it were true that by agreement of the heirs the property involved herein had been assigned to Feliza Luz Paulino as her share, that agreement and subsequent sale are of no legal effect without the sanction or approval of the court before which Civil Case No. 37 is pending. "The foregoing conclusion relieves Us from considering the other points raised in the present controversy. "WHEREFORE, the decision appealed from is hereby reversed and the complaint dismissed, without pronouncement as to costs. IT IS SO ORDERED." (Roll, pp. 21-23.) The present petition for review by certiorari filed by Quirico L. Saturnino, is directed against this decision of the Court of Appeals. It is clear, to our mind, that said petition must be granted. Pending "partition" adjudication or assignment to the heirs" of a deceased estator, their "right of inheritance" is not merely" in the nature of hope," for pursuant to Article 657 of the Civil Code of Spain, which was in force in the Philippines at the time of the death of Jaime Luz Paulino "the rights to the succession of a person are transmitted from the moment of his death" and the heirs pursuant to Article 661 of the same Code "succeed to the deceased in all his rights and obligations by the mere fact of his death." In other words, the person concerned is an heir and he may exercise his rights as such, from the very moment of the death of the decedent. One of those rights is that of redemption under Article 1067 of the aforesaid code (Article 1088 of the Civil Code of the Philippines). What is more, this right of redemption may be exercised only before partition, for said provision declares explicitly:jgc:chanrobles.com.ph

"If either of the heirs should sell his hereditary rights to a stranger before the partition, any or all of his co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the purchase price, provided it be done within the period of one month, to be counted from the time they were informed thereof." (Italics supplied.) With reference to the adjudication, which the Court of Appeals seemingly considers essential to the enjoyment of the right of redemption among co-heirs, it should be noted that a property may be adjudicated either to one heir only or to several heirs pro-indiviso. In the first case, the adjudication partakes, at the same time, of the nature of a partition. Hence, if the property is sold by the heir to whom it was adjudicated, the other heirs are not entitled to redeem the property, for, as regards, the same, they are neither co-heirs nor co-owners. In the second case, the heirs to whom the property was adjudicated pro-indiviso are, thereafter, no longer co-heirs, but merely co-owners. Consequently, neither may assert the right of redemption conferred to co-heirs, although, in proper cases, they may redeem as co-owners, under Article 1522 of the Civil Code of Spain (Article 1620, Civil Code of the Philippines. Hence, commenting on said Article 1067, Manresa says:jgc:chanrobles.com.ph "La venta del derecho hereditario ha de hacerse antes de que se practique la particin. Esto es evidente, porque despus al derecho hereditario en abstracto sustituyen las cosas o derechos determinados comprendidos en la respectiva adjudicacin, cesa la comunidad en la herencia, y podra proceder otro retracto, mas no el retracto especial a que el art. 1067 se refiere." (7 Manresa [6th ed. Revised] p. 719.) Again, the house and lot involved in the case at bar are not in custodia legis. Said property was sold by Feliza Luz Paulino to Maximo Daleja, Juana Lucas, Nemesio Lucas and Donata Guillermo on October 22, 1945, or almost a month before Special Proceeding Case No. 37 was instituted (November 19, 1945). At that time, the buyers of said property were in possession thereof. They still held it when the judicial administrator was appointed in Case No. 37, and this must have taken place after the probate of the will on July 6, 1949 (Rule 78, section 4, Rule 79, sections 4 and 6, and Rule 80, section 5, Rules of Court). Up to the present, said buyers remain in possession of the property in litigation. Neither the court, taking cognizance of Case No. 37, nor the judicial administrator therein appointed, has even tried to divest them of said possession. In fact, if they were as they are unwilling to yield it and the administrator wished to take the property under his custody, it would be necessary for him to institute a separate civil action therefor. In view of the foregoing, and considering that the Court of Appeals has not passed upon the issues raised therein by respondents herein and that the decision of said court does not state the facts essential to the determination of those issues, said decision is hereby reversed, and let the records of this case be remanded to the Court of Appeals for further proceedings, not inconsistent with this decision. Respondents, except the Court of Appeals, shall pay the costs of this instance. It is so ordered.

[G.R. No. 26855. April 17, 1989.] FRANCISCO GARCIA, PAZ GARCIA, and MARIA GARCIA, Petitioners, v. JOSE CALALIMAN, PACIENCIA TRABADILLO, & HON. COURT OF APPEALS, Third Division, Respondents SYLLABUS 1. CIVIL LAW; MODES OF ACQUIRING OWNERSHIP; SUCCESSION; WRITTEN NOTICE OF SALE REQUIRED UNDER ARTICLE 1088 OF THE NEW CIVIL CODE. 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 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 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 607 [1987]; Cabrera v. Villanueva, G.R. No. 75069, April 15, 1988). 2. ID.; AWARD OF DAMAGES; PRESENCE OF BAD FAITH WARRANTS AWARD OF ATTORNEYS FEES; CASE AT BAR. 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.

DECISION 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:jgc:chanrobles.com.ph "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:chanrob1es virtual 1aw library 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:jgc:chanrobles.com.ph "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:jgc:chanrobles.com.ph "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-infact, 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).chanroblesvirtualawlibrary 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:jgc:chanrobles.com.ph "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 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; "6. That, plaintiffs would have purchased the interest and shares of their co-owners had the latter offered the same to them 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:jgc:chanrobles.com.ph "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:jgc:chanrobles.com.ph "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, P800 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."cralaw virtua1aw library They prayed that the trial court render judgment:jgc:chanrobles.com.ph "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 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. 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 any be legal, just and equitable."cralaw virtua1aw library On the other hand, the defendants, private respondents herein, alleged in their answer the following special affirmative defenses (Record on Appeal, p. 14):jgc:chanrobles.com.ph "1. That plaintiffs have no cause of action against the herein defendants; "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."cralaw virtua1aw library 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:jgc:chanrobles.com.ph "WHEREFORE, judgment is hereby rendered:chanrob1es virtual 1aw library (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; (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; (c) Without pronouncement as to costs."cralaw virtua1aw library On October 14, 1957 plaintiffs filed their notice of Appeal predicated on 4(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 courts." (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.chanrobles.com : virtual law library 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:chanrob1es virtual 1aw library 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. 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. 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."cralaw virtua1aw library (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:jgc:chanrobles.com.ph "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."cralaw virtua1aw library 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 3, 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).chanrobles law library : red 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 of Castillo v. Samonte, where this Court observed:jgc:chanrobles.com.ph "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])."cralaw virtua1aw library 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 s 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 607 [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 30day 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.

[G.R. No. L-11141. June 27, 1958. ] FIDELA MORIN VDA. DE MARBELLA, Plaintiff-Appellee, v. VICTORIANO KILAYKO, ET AL., Defendants-Appellants. Julian T. Hernaez, Jose Y. Montalvo, Jose Ma. Kilayko, and Hilado & Hilado for Appellants. Pedro M. Marbella, Canuto V. Pefianco, Jr., Ven C. Laurel, Wenceslao R. Lagumbay, and Palanca & Torres for Appellee. SYLLABUS 1. SUCCESSION; INTESTATE SUCCESSION; NEAR RELATION EXCLUDES THE FARTHER; EXCEPTION. It is a cardinal principle in intestate succession that the existence of a nearer relation excludes the farther, saving the right of representation when it properly takes place (Art. 962, Civil Code). 2. PARTITION; JUDICIAL PARTITION IN PROBATE PROCEEDINGS; WHEN SUBJECT TO REVIEW AND READJUSTMENT. A partition which includes a person believed to be an heir, but who is not, shall be void with respect to such person. In the case at bar, as the order of the lower Court adjudicated the properties in question to appellants who are not entitled to the inheritance in view of the existence of plaintiffs superior right, the aforesaid order is reviewable and subject to readjustment within 2 years after the settlement and distribution of the estate and thus cannot have the effect of barring a subsequent action by the rightful heir for the recovery of the properties belonging to the intestate. 3. ID.; ID.; ID.; PARTITIONERS IN GOOD FAITH ENTITLED TO FRUITS. As there was no clear-cut indication of appellants bad faith in taking over and dividing the estate among themselves, they could be

considered as possessors in good faith up to the time they were notified of plaintiffs right by the institution of the action for recovery of the properties. The fruits accruing to the properties constituting the estate previous to that date is not, therefore, recoverable. Matias Morin, a resident of Talisay, Negros Occidental, died intestate on October 7, 1950, leaving a considerable amount of properties. As he had neither ascendants nor descendants, Concepcion Kilayko and 17 others, namely, Victoriano, Francisco, Lilia, Gilda, Milagros, Jesus, Jose Ma., Agustin, Juan, Patrocinio, Alberto, Luz, Jose, Josefina, Nicolas, Domingo and Ramiro, all surnamed Kilayko, relatives of the deceased in the 5th degree and claiming to be his only heirs, filed a petition with the Court of First Instance of Negros Occidental (Sp. Proc. No. 1776) for judicial administration of the estate of said deceased. In virtue thereof, Concepcion Kilayko was duly appointed administratrix of the estate and thereafter submitted an inventory of the properties of the deceased consisting of real as well as personal properties, shareholdings in commercial and industrial corporations, the value of which was placed at P86,106.14. In the latter part of November, 1951, alleging that as children of the first cousins of the deceased they were his only surviving heirs, the aforementioned kins submitted a project of partition dividing and distributing the properties among themselves, together with Justa Antigua, a foster relative of the late Matias Morin, and Paterna Guianzon, who had rendered invaluable services to him in his last illness, which agreement was duly approved by the Court in its order of June 7, 1952. These proceedings were finally terminated on November 14, 1953. On October 1, 1954, Fidela Morin Vda. de Marbella instituted a civil action against the Kilaykos, Justa Antigua and Paterna Guianzon with the Court of First Instance of Negros Occidental (Civil Case No. 3158), contending that she was a half-sister of Matias Morin, being a child had by Valentin Morin, father of the deceased, with his first wife; that such relationship was known to the family circle of Matias Morin and other members of his household; that through fraud and collusion, defendants represented themselves to be the rightful heirs when in fact, plaintiff was closer to the deceased in succession; that defendant Concepcion Kilayko omitted to include in the inventory of the properties of the deceased submitted to the Court certain real properties; that plaintiff was never advised of the demise of her brother nor was notified of the intestate proceedings commenced by the defendants. Alleging that the Court was without jurisdiction, plaintiff prayed that the judgment pronouncing defendants as heirs of the deceased and ordering for the partition of the properties be declared null and void, or at least voidable; to declare her as the rightful heir; that defendants be required to reconvey unto plaintiff all properties and assets found in the inventory as well as those omitted therein; that defendants be required to render an accounting of all the fruits and income of the entire estate or to pay the total sum of P200,000.00 by way of damages, for attorney's fees and costs. Plaintiff likewise prayed that the properties subject of the controversy be placed under receivership. Justa Antigua de Ereeta, one of the defendants, filed an answer admitting the averment that plaintiff was a legitimate child of Valentin Morin, father of the deceased, with the former's first wife, which fact she allegedly disclosed to Concepcion Kilayko. She denied, however, that there was fraud and collusion in the distribution of the properties of the deceased because she only received a small portion of the estate in the belief that plaintiff was already dead. In praying that she be absolved from any liability, this defendant expressed willingness to return the properties that she had received if plaintiff would be declared the rightful heir to the same. The rest of the defendants, on the other hand, moved to dismiss the complaint on the ground of res judicata for it was contended that as the order of the Court adjudicating to them the respective properties that they had received was issued on June 7, 1952, and it having become final, the matter could no longer be reopened. Considering the arguments adduced by both parties in their pleadings, the Court found the motion to dismiss to be well-founded and in its order of December 4, 1954, dismissed the complaint. Plaintiff thus filed an

exhaustive motion for reconsideration advancing reasons to support her contention that the order of the lower court of June 7, 1952, approving the project of partition presented by the alleged heirs of the deceased did not constitute res judicata against one who was not notified thereof and had a better right over the properties in litigation. Passing upon the said motion and the opposition thereto offered by defendants, except Justa Antigua, the Court reconsidered its previous ruling and required said defendants to file their answer to the complaint. In their joint answer, defendants except Justa Antigua denied the material averments of the complaint among which were the imputation that they have knowledge of the existence of a half-sister of the deceased Matias Morin; that there were properties belonging to the said deceased that were not included in the inventory; and that there was fraud and collusion in the distribution of the properties in question. By way of special defenses, it was alleged that the complaint failed to state facts constituting a cause of action; that granting that there was, same was already barred by a prior judgment; and that plaintiff had lost whatever right she may have on the ground of laches. It was, therefore, prayed that the complaint be dismissed and plaintiff condemned to pay said defendants the sum of P5,000.00 each; for attorney's fees and costs. Due hearing was conducted and after the parties had rested their respective cases, the lower court rendered judgment holding that preponderant evidence supported the conclusion that Fidela Morin de Marbella was a half-sister of the deceased Matias Morin and was thus declared the rightful heir to the properties left by the latter. Accordingly, defendants were ordered to reconvey and deliver to plaintiff the properties which they might have received, together with the fruits thereof, computed from the date they took possession over the same up to the time of actual delivery. In case said provision would be incapable of performance, it was ordered that the value thereof at the time they were disposed of be paid to plaintiff. And as prayed for by plaintiff, the estate of the deceased was ordered placed under receivership. From this decision, defendants, except Justa Antigua, brought the matter to this Court on appeal assigning several errors allegedly committed by the court a quo. Stripping the same, however, to bare essentials, the main issue presented by the instant appeal could be boiled down into whether or not the order of adjudication dated June 7, 1952 issued by the probate court distributing the properties of the deceased among defendants pursuant to the project of partition submitted by the latter, which order has already become final, has the effect of res judicata on the matter of declaration of heirs and the consequent distribution of the estate, and therefore bars a subsequent action for recovery brought by a preterited relative. We have gone over the evidence presented during the trial of this case in the court a quo and found reason to sustain the trial Judge's ruling that plaintiff Fidela Morin Vda. de Marbella was able to establish her relationship with Matias Morin, and taking into account the fact that the Kilaykos, as children of 3 first cousins of the deceased, were only related to the latter in the 5th degree, plaintiff, as half-sister of said deceased, is more entitled to the inheritance for it is a cardinal principle in intestate succession that the existence of a nearer relation excludes the farther, saving the right of representation when it properly takes place (Art. 962, Civil Code.) Defendants-appellants, however, maintain that aside from the fact that they were already declared heirs of the deceased Matias Morin by an order of the lower Court which has long become final and, therefore, can no longer be the subject of a subsequent action tending to reopen the matters already adjudicated therein, it appearing that the petition for recovery was filed almost one year after the intestate proceedings were finally closed, plaintiff has already lost whatever right she may have by reason of abandonment or laches. It may be noted at this juncture that although the estate was placed under judicial administration upon petition of the Kilaykos, it is a fact that after the notice to creditors appeared in the issues of the "News Clipper", a newspaper of general circulation in the province of Negros Occidental, for 3 times, said petitioners alleging that they were the only heirs of Matias Morin presented before the Court a project of partition dividing the estate among themselves together with Justa Antigua and Paterna Guianzon, which agreement was duly approved by the Court. While it is undeniable that the distribution of the estate was effected in a special proceeding, it may

likewise be conceded that the settlement thereof was more or less summary for the Judge most likely upon being informed of the absence of creditors or claims stamped his approval to the said agreement and the properties were correspondingly adjudicated to the heirs appearing therein. Apparently, as the deceased left no pending obligations, the Kilaykos have deemed it more convenient to follow the procedure outlined by Rule 74 of the Rule of Court regarding extra-judicial settlement of the estate, a step which the Court is unlikely to disapprove considering that the heirs may not only submit an agreement dividing the estate among themselves, but may even ask the probate court to turn over to them both real and personal property without division, where such request is unanimous, and this right carries with it the privilege to dispose of the same in the manner the heirs please (Vda. de Cruz vs. Ilagan, 81 Phil. 554). We are inclined to believe that plaintiff actually was not aware of the death of her brother, much less of the institution of the intestate proceedings and the consequent distribution of his estate, although appellants tried to disprove and contest the same and feigned ignorance of her relation to the late Matias Morin. At any rate, appellants argue that an intestate proceeding being one in rem, the publication of notices in connection therewith has the effect of notifying the whole world that such a proceeding existed and plaintiff-appellee is, therefore, charged with knowledged thereof; in which case, appellants conclude, any ruling of the Court rendered therein shall be binding on all interested persons. But it cannot be denied that as the nearest relative of the deceased, plaintiff's dominion over the estate was transmitted to her upon her brother's death by operation of law (Art. 777, Civil Code). And the Civil Code also provides that a partition which includes a person believed to be an heir, but who is not, shall be void with respect to such person. As the order of the lower Court of June 7, 1952, adjudicated the properties in question to appellants who are not entitled to the inheritance in view of the existence of plaintiff's superior right, the aforesaid order is reviewable and subject to readjustment within 2 years after the settlement and distribution of the estate (See Sec. 4, Rule 74 of the Rules of Court) and thus cannot have the effect of barring a subsequent action by the rightful heir for the recovery of the properties belonging to the estate of Matias Morin. As this Court has already said in another case: A judicial partition in probate proceedings (and the same thing can be said of partition in intestate proceedings) does not bind the heirs who were not parties thereto. No partition, judicial or extra-judicial, could add one iota or particle to the interest which the partitioners had during the joint possession. Partition is of the nature of a conveyance of ownership and certainly none of the owners may convey to the others more than his own true right. A judicial partition in probate proceedings is not final and conclusive, and not being of such definitive character to stop all means of redress for a co-heir who has been deprived of his lawful share, such co-heir may still, within the prespective period, bring an action for reinvindication in the province where any of the real property of the deceased may be situated. Broad perspectives of public policy are set out in the opinion of the Court in support of the wisdom of allowing a co-heir the benefits of the law of prescription even after a partition, judicial or extra-judicial, has been had (Lajom vs. Viola, 73 Phil. 563). We find merit, however, in appellants' allegation as to the legality of the decision of the Court a quo allowing the recovery of fruits of the properties received by them. As there was no clear-cut indication of appellant's bad faith in taking over and dividing the estate among themselves, they could be considered as possessors in good faith up to the time they were notified of plaintiff's right by the institution of the action for recovery of the properties (Civil Case No. 3186 of the Court of First Instance of Negros Occidental). The fruits accruing to the properties constituting the estate previous to that date is not, therefore, recoverable. Wherefore, and with the modification just stated, the decision appealed from is hereby affirmed, with costs against the defendants (except Justa Antigua).Plaintiff, however, shall reimburse said defendants for whatever amounts they may have paid as in inheritance tax, if they have paid any, for having received the estate of the deceased Matias Morin. It is so ordered.