GENERAL PROVISIONS ARTICLES 774-782

EN BANC
G.R. No. L-49065

April 30, 1947

RITA GARCHITORENA VDA. DE CENTENERA, applicant-appellee;

MARIANO GARCHITORENA, movant-appellee,
vs.
VICENTE SOTTO, H.P. OBIAS and ANA PATAAN, oppositors-appellants.
Lorenzo Sumulong for oppositor and appellant Sotto.
Jose M. Peas for oppositors and appellants Obias and Pataan.
Jose Ma. Recto and Jayme Reyes for applicant and appellee Garchitorena.
Manly and Reyes for movant and appellee.
PERFECTO, J.:
On June 20, 1940, Mariano Garchitorena file a motion praying that subdivision plan Psu66063-Amd., marked as Annex E, be approved and that it be decreed that certificates
of title be issued in his name on lots 2, 3, and 4 of the original plan Psu-66063 and upon
lots 1, 5, 6, 7, and 8 of the subdivision plan Psu-66063-Amd.
The movant alleged that on May 14, 1931, a decision was rendered by the lower court
granting Rita Garchitorena as heiress of her father Andres, title over four lots, the same
described in her original application, subject to lien in favor of Mariano Garchitorena
and other creditors, with the exclusion of about 500 hectares belonging to Ramon and
Jose Alvarez, about 300 hectares of land of the public domain, a portion of 18 hectares
belonging to Hermogenes P. Obias and another portion of 24 hectares of land of the
public domain, with the exception of 4 hectares belonging to Januario Alvarez, all said
portions being included in lot number 1. It is also alleged that after said judgment was
modified by the Supreme Court and some steps have been taken as a result of said
modification, lots 1, 2, 3, and 4 of land Psu-66063 were adjudicated to Mariano
Garchitorena in consideration of the amount of P28,745.93 a deed of sale having been
executed to said effect on September 8, 1935, which was approved by the lower court
on April 26, 1940, and that Mariano Garchitorena bought the 500 hectares of Ramon
and Jose Alvarez on April 27, 1939.
Several persons appeared to oppose the motion, but only three of them came to us
appealing against the lower court's order dated June 28, 1941, decreeing the issuance
of certificate of titles in favor of Mariano Garchitorena on lots 2, 3, and 4 of the original
plan Psu-66063, and on lots 5 and 8 of the subdivision plan Psu-66063-Amd., and on lots
1, 6, and 7 of the same subdivision plan.
The appellants are H.P. Obias, Ana Pataan and Vicente Sotto.
We will deal separately with their respective contentions.

OPPOSITION OF H.P. OBIAS

This oppositor contends that the 300 hectares ordered to be excluded from lot number
1 as land of public domain, as provided in the lower court's decision of May 14, 1931, in
fact should measure not only 300 hectares but 961 hectares, 38 ares and 9 centares.
The lower court disposed of the opposition by stating that the decision of May 14, 1931,
was amended, and the Supreme Court affirmed it as amended, and that the
subdivision plan Psu-66063-Amd. is in conformity with the terms of said amended
decision.
Appellant Obias complains in his appeal that the lower court erred in awarding to
Mariano Garchitorena the title of lots 1, 6, and 7 of subdivision plan Psu-66063-Amd.,
belonging originally to Ramon and Jose Alvarez.
No law and no authority has been invoked in support of appellant's contention,
although he advances several reasons in support of his theory. The reasons advanced
are stated in his brief as follows:
1. Ramon Alvarez did not seek any affirmative relief in his opposition to the
application for registration of Rita Garchitorena so that what the Court did in
rendering its decisions was simply to order its segregation from the plan, and his
supposed successor in interest, Mariano Garchitorena, could not be entitled to
the issuance of a degree of registration in the name of the latter.
2. Because the decision rendered in this case is already final, and hence cannot
be amended.
3. Because the duty of the lower Court in regards to this case is simply to comply
with that final judgment so that inasmuch as the dispositive part orders the
segregation from the plan of the portions awarded to Ramon Alvarez, the lower
Court is in duty-bound to comply with that mandatory order.
4. Because the issuance of a decree of registration in favor of the movantappellant for the portions awarded to Ramon Alvarez and Jose Alvarez would
create an anomaly, in the sense that interested parties would be prejudiced
thereby. There are several persons possessing portions of land within the land
adjudicated to Ramon Alvarez and Jose Alvarez. They possessed these portions
with a claim of right of ownership adverse to that of Ramon Alvarez and Jose
Alvarez.
We do not find in merit appellant's contention.
Section 38 of the Land Registration Act No. 496, as amended by Act No. 3621, which
took effect on December 5, 1929, provides:
If the court after hearing finds that the applicant or adverse claimant has title as
stated in his application or adverse claim and proper for registration, a decree of
confirmation and registration shall be entered . . ..
In the case of Garchitorena Vda. de Centenera vs. Obias (58 Phil., 21, 23), the Supreme
Court declared that from the evidence "it conclusively appears that the late Jose
Alvarez and his successors had a considerable extent of land in the same place where
the applicant's land is situated, and taking also into account that the land was
surveyed for purposes of registration, we find that the weight of the evidence indicates

that the land claimed by the opponent Ramon Alvarez had been included in the
applicant's plan. This land has an area of 500 hectares. According to Ramon Alvarez, it
appears that his father, Ibo Alvarez, had held the tract since 1905 and that at the death
of said Ibo Alvarez, Ramon Alvarez and his co-owner, Jose Alvarez entered into
possession and have remained therein since."
From the above, there cannot be any doubt that Ramon and Jose Alvarez have been
finally declared as the owners of the 500 hectares in question, and such declaration is
good for all purposes, including the issuance of the corresponding certificates of title to
said owners of their successors in interest, such as buyer Mariano Garchitorena.
Appellant's allegation that the decree of registration in favor of Mariano Garchitorena
for the portions awarded to Ramon and Jose Alvarez would prejudice interested parties
is groundless, because all interested parties were given full opportunity to advance and
present their respective claims since the original application was duly published and
the proceedings for registration, which are in rem in character, were begun, it
appearing that the original application included the 500 hectares which were finally
adjudicated to Ramon and Jose Alvarez. Anybody and everybody who had any
legitimate claim to said 500 hectares or any part thereof, if they wanted to, could have
appeared before the court and presented their claims. If they failed to do it at the
opportune time, it is now too later for them to complain.
APPEAL OF ANA PATAAN
This appellant complains that the lower court erred in holding that the free patent title
number 1406 of said Ana Pataan is null and void ab initio.
The lower court's actions is based upon the fact that when the free patent title number
1406 was issued in 1937, the land of 10 hectares covered by it was part of a larger tract
which was declared private property according to the decision of May 14, 1931, which
was later affirmed by the Supreme Court, very much earlier than the issuance of the
free patent title in question.
We do not find any error in the lower court's action.
The decision of the Supreme Court declaring the land in question as private property
was promulgated on March 4, 1933 (Garchitorena vs. Vda. de Centenera vs. Obias, 58
Phil., 21), that is more than four years before the issuance of the free patent title in
question on March 21, 1937.
Upon this conclusion, it will serve no purpose to pass upon the question raised by
appellant Pataan as to the court's denial of her motion for reopening, besides the fact
that the basis of her contention, that she has not been mentioned in the original
application as possessor of the land which she is claiming, appear to be flimsy by the
fact that she is the wife of Senen Pandai who was appointed by Jose N. Garchitorena,
to take care of the lands in question.
APPEAL OF VICENTE SOTTO
This appellant alleges that on March 4, 1931, the Court of First Instance of Manila
rendered a judgment ordering Rita Garchitorena Vda. Centenera to pay him the
amount of P960.84; that by virtue of a writ of execution issued on March 22, 1932, the
lots in question were attached and sold at public auction, the sheriff issuing to

appellant the deed of sale on August 7, 1934, which was later registered in the office of
the Register of Deeds of Camarines Sur.
The lower court found upon the evidence that lots 2, 3, and 4 of original plan Psu-66063
and lots 5 and 8 of the subdivision plan Psu-66063-Amd. were adjudicated, by virtue of
a decision of the Supreme Court on March 4, 1933, to Rita Garchitorena as heiress of
her father, Andres Garchitorena, the adjudication subject to sections 712 and 713 of
the Code of Civil Procedure.
Following directives in said decision, Mariano Garchitorena and brothers filed a
complaint in the Court of First Instance of Camarines Sur against Rita Garchitorena, and
secured a judgment on December 20, 1934, ordering Rita Garchitorena to deliver to
the administrator of the deceased Andres Garchitorena the possession of the lands
decreed to be adjudicated to her in this case, with the declaration that the creditors of
the intestate of Andres Garchitorena will have the preferent right of retention upon said
lands for costs and other expenses caused by delays, and that the judicial administrator
of the intestate was authorized on July 8, 1935, against opposition of appellant Vicente
Sotto, to sell at public auction the above five lots in order to pay the credits of Mariano,
Flor, and Marcel Garchitorena.
Oppositor Vicente Sotto appealed against the order to the Supreme Court, which
affirmed the appealed order, overruling later on several motions for reconsideration
filed by said appellant.
The judicial administrator, consequently, sold at public auction on September 7, 1935,
the lots in question to Mariano Garchitorena, who happened to have appeared as the
only buyer, at the price of P28,745.93. The deed of sale was executed on September 8,
1935, and approved by the court on April 26, 1940, against the opposition of appellant
Vicente Sotto.
On April 27, 1939, Mariano Garchitorena bought the 500 hectares adjudicated by the
Supreme Court to Ramon and Jose Alvarez, comprising lots 1, 6, and 7 of the subdivision
plan Psu-66063-Amd.
From the foregoing undisputed facts, no issue of facts having been raised in any of the
appeals in this case, it appears that Rita Garchitorena has never become the owner of
the lots in question, it appearing that the adjudication made in her favor was subject to
the provisions of sections 712 and 713 of the Code of Civil Procedure, which in
substance means without prejudice to the rights of the creditors of her deceased
father, Andres Garchitorena.
Although the Civil Code provides that succession takes effect from the time of the
death of the owner, such provision does not create a succession which, as a matter of
fact, does not exist, as in the case of what the deceased Andres Garchitorena could
have left to his daughter Rita.
In the contemplation of the law, no succession shall be declared unless and until a
liquidation of the assets and debts left by the deceased shall have been made and all
his creditors fully paid. Until a final liquidation is made and all debts are paid, there is no
way of determining if his heirs may inherit anything.
Until such a liquidation has been made, the right of heirs to inherit remains to be
inchoate. It partakes of the nature of hope. Liquidation is necessary to determine if the

deceased has left any liquid asset which may be transmitted to his heirs. Before any
liquid asset is determined, all debts and obligations must first be liquidated and paid.
In the instant case it appears that after the lots in question had been sold at public
auction to Mariano Garchitorena at the price of P28,745.93 with which the debt of the
deceased Andres Garchitorena to Mariano, Flor, and Marcel Garchitorena were paid,
no property or asset remained to be adjudicated to his daughter Rita Garchitorena.
Consequently, at the public auction in which appellant alleges he bought the lots in
question from Rita Garchitorena to collect the amount of P960.84, as a matter of fact
appellant bought nothing, it appearing that what he bought as belonging to Rita
Garchitorena did not belong to the latter.
Appellant alleges that he cannot be prejudiced by judgments or orders issued in other
cases in which he has not been a party, and said other cases are the petition for land
registration filed by Rita Garchitorena, decided by the Court of First Instance of
Camarines Sur on May 14, 1931, with the modification decreed by the Supreme Court
on March 4, 1933 (58 Phil., 21); civil case No. 5782 of the Court of First Instance of
Camarines Sur instituted by Mariano, Flor, and Marcel Garchitorena against Rita
Garchitorena, to recover the lots in question, on the ground that said properties
pertained really to the deceased Andres Garchitorena and should be made available
to answer for the latters debt, and the intestate of Andres Garchitorena, case No. 2881
of the Court of First Instance of Camarines Sur, in which proceedings took place ending
in the sale of the lots in question to Mariano Garchitorena (SC-G.R. No. 44854).
In the latter case appellant filed on June 4, 1935, an opposition to have the properties
in question sold to satisfy claims of Mariano, Flor and Marcel Garchitorena against the
deceased Andres Garchitorena. In said opposition appellant alleged:
Comparece Vicente Sotto, por si y en su propia representacion, como tercerista
en este asunto, y se opone a la mocion de Mariano Garchitorena y Marcel
Garchitorena, de fecha 20 de Mayo de 1935, pidiendo la venta en privado o en
publica subasta de las parcelas de terreno descritas en la misma, por el
fundamento de que el infrascrito es el unico y absoluto dueode dichas
parcelas de terreno.
1. En los asuntos R.G. Nos. 36385 y 36547, titulados Rita Garchitorena Vda. de
Centenera contraHermogenes P. Obias, et al., y Rita Garchitorena Vda. de
Centenera contra El Director de Terrenos y otros, respectivamente, el Tribunal
Supremo decreto, en decision de Marzo 4, 1933, que todas las parcelas de
terreno descritas en la mencionada mocion fuesen registradas a nombre de Rita
Garchitorena (Gac. Of., Vol. XXXII, No. 18, de Febrero 10, 1934.)
2. En el asunto No. 38722 del Juzgado de Primera Instancia de Manila,
promovido por Vicente Sotto contra Rita Garchitorena Vda. de Centenera, se
dicto con fecha 31 de Mayo de 1931 sentencia en favor del demandante y
contra la demandada; y, habiendose quedado firme y ejecutoria dicha
sentencia, las parcelas de terreno en cuestion, que son las mismas descritas en
la mocion de que se trata en el presente asunto, fueron vendidas en publica
subasta por el Sheriff Provincial de Camarines Sur, y adquiridas por el
compareciente el 7 de Julio de 1933 en que se verifico dicha venta en publica
subasta.

3. El dia 1. de Septiembre de 1933 se expedio por el Sheriff de Camarines Sur en

favor del comprador Vicente Sotto el correspondiente Certificado de Venta,
sobre dichas parcelas de terreno, y dicho certificado de venta fue anotado en
el Registro de la Propriedad de Camarines Sur correspondiente el 20 de
Septiembre de 1933; y
4. No habiendose ejercitado por las ejecutadas en el citado asunto su derecho
de retracto, dentro del plazo legal, el 6 de Agosto de 1934, elcitado Sherifff
Provincial de Camarines Sur expedio en favor de Vicente Sotto el certificado de
Venta absoluta, el cual fue igualmente anotado en el Registro de la Propriedad
de Camarines Sur correspondiente en la misma fecha, y una copia del cual se
acompaa a este asunto y se marca como Exhibito "A-T" del infrascrito
tercerista.
De los hechos que preceden como se ve, resulta que el aqui tercerista, Vicente
Sotto, adquirio las parcelas de terreno en cuestion en virtud de compra en
publica subasta, anunciada y llevada a cabo por el Sheriff Provincial de
Camarines Sur el 7 de Julio de 1933, o sea mucho antes de que este Juzgado
dictara el 20 de Diciembre de 1934 su sentencia en el asunto No. 5782, titulado
Marian de Garchitorena, Flor Garchitorena y Marcel Garchitorena contra Rita
Garchitorena Vda. de Centenera y Jose N. Garchitorena en su capacidad de
administrador judicial del abintestato del finado Andres Garchitorena.
Appellant's contentions were overruled by the Court of First Instance of Camarines Sur.
Appellant appealed to the Supreme Court, which, on December 5, 1938 (G.R. No.
44854), overruling again appellant's contentions, among others, stated:
Claiming to have acquired title to the land in question by reason of a sheriff's
sale made in his favor, the appellant, after obtaining a permission to intervene,
filed a written opposition to the aforesaid motion of Mariano de Garchitorena,
Flor Garchitorena and Marcel Garchitorena. The court below rejected this
opposition, on the ground that, although the sheriff's sale was made prior to the
rendition of the judgment in civil case No. 5782, it could not prevail against the
said judgment, in view of the fact, that, prior to the sale, a notice of lis
pendens was filed in connection with that case.
In support of this appeal, it is now contended that the notice of lis pendens could
not prejudice the right of the appellant to the land in question because such
notice could only affect land registered under Act No. 496. Appellant further
relies on section 194 of the Administrative Code, as amended, which in part
provides that "any registration made under this section shall be understood to be
without prejudice to a third party with better right." The point thus raised is set at
rest by the decisions of this court in Atkins, Kroll & Company vs. Domingo, 46 Phil.,
362, and Felino vs. Sanz, 44 Phil., 691. In the latter case, this court held that "a
transferee pendente lite of real property in litigation is bound by a judgment
against his predecessor in interest and is a proper but not an indispensable part."
Appellant also claims that he could not be affected by the judgment rendered
in civil case No. 5782, because it was fraudulently obtained. This contention is
without merit. The judgment in question must be presumed to be legal and valid,

unless shown by conclusive evidence to have obtained through fraud. No such

evidence exists in this case.
The questions raised in the above opposition are substantially the same as those raised
in the supplementary opposition filed by appellant in the case at bar.
When Mariano Garchitorena filed on February 24, 1940, a motion for the approval of
the sale in his favor of the lots in question, appellant filed an opposition, dated March
11, 1940, reiterating his alleged rights by virtue of the levy and sale on execution in his
favor. The opposition was overruled by an order dated April 26, 1940, in which the sale
in favor of Mariano Garchitorena was approved. Appellant did not appeal against said
order.
The decision of the Supreme Court of December 5, 1938, in case G.R. No. 44854 and the
unappealed order of the Court of First Instance of Camarines Sur dated April 26, 1940,
and special proceeding No. 2881 had finally settled the questions raised by the
appellant.
For all the foregoing, finding no merit in the appeals of appellants H.P. Obias, Ana
Pataan, and Vicente Sotto, the order of the lower court dated June 28, 1941, is
affirmed, with costs against appellants.
Moran, C.J., Paras, Pablo, Bengzon, Briones, Padilla, and Tuason, JJ., concur.

Separate Opinions
HILADO, J., concurring and dissenting:
I concur in the disposition of the case as regards the parcels of land decreed by this
Court in G.R. Nos. 36385 and 35547 in favor of Rita Garchitorena, and dissent from the
remainder of the majority decision which affects the parcels covered by the
oppositions of the herein opponents-appellants.
These latter parcels, whose registration in the majority decision also decrees in favor of
movant-appellee Mariano Garchitorena, were never applied for in an application for
registration, nor the subject of a like petition on the part of any opponent in the original
registration cases which, after having been appealed to this court, were docketed and
disposed of herein under G.R. Nos. 36385 and 36547 (see 58 Phil., 21). Those cases were
instituted, prosecuted and decided under Act No. 496. The judgment of this Court
disposing of said cases and promulgated on March 4, 1933, and elevated to the
authority of res judicata seven years before the motion now under consideration was
filed in the court below, and more than fourteen years ago today, upheld the
oppositions filed by the Director of Lands, Hermogenes P. Obias (18 hectares), Ramon
and Jose Alvares (500 hectares), and Januario Alferes (24 hectares), and ordered the
amendment of the Plan Psu-66063 "so as to exclude the portions of land pertaining to
said opponents." No affirmative relief was granted said opponents in the sense of
decreeing the registration in their favor of the parcels of land respectively covered by
their oppositions.
Before the amendment of sections 34, 37, and 38 of Act No. 496 by sections 1, 2, and 3
of Act No. 3621, the court has no jurisdiction to decree in the same proceeding the

registration in favor of the opponent, even though it should find that, as between the
applicant and the opponent, the land belonged to the latter. In Tecson vs.
Corporacion de los PP. Dominicos (19 Phil., 79, 80), this Court, inter alia, said:
. . . this court has held heretofore that the jurisdiction of the Land Court extends
no further than the inscription of the land described in its final decree and the
enforcement of that decree, and that, even though the land described in the
petition be found by the court, as between the petitioner and the oppositor,to
be the property of the opponent, such land can not be inscribed in his name,
the Land Court having, as we have said, no jurisdiction or power to do so. It
naturally and necessarily follows that the opponent, if he desires the land of
which he claims ownership to be registered in accordance with law, must begin
a new proceeding in the Land Court for that purpose.
In this consisted at the time, the difference between registration proceedings under Act
No. 496 and those under Chapter VI of Act No. 926. (Sec. 64, latter Act.)
On December 5, 1929, section 34 of Act No. 496, it is true, was amended by section 1 of
Act No. 3621, so that the second sentence thereof thereafter reads as follows:
. . . The answer (or opposition, as it is often called) shall state all the objections to
the application, and shall set forth the interest claimed by the party filing the
same and apply for the remedy desired, and shall be signed and sworn to by
him or by some person in his behalf.
Section 37 of Act No. 496 was also amended by section 2 of Act No. 3621, so that it
partly read as follows:
SEC. 37. xxx

xxx

xxx

. . . in a case where there is an adverse claim, the court shall determine the
conflicting interests of the applicant and the adverse claimant, and after taking
evidence shall dismiss the application if neither of them succeeds in showing that
he has proper title for registration, or shall enter a decree awarding the land
applied for, or any part thereof, to the person entitled thereto . . ..
But even after the amendment, the underscored portion of the above-quoted
provisions clearly contemplate that in order for the opponent to obtain from the court a
decree of registration, he must apply for the same remedy.
It is likewise true that the same amending act reformed section 38 of Act No. 496 so that
said section thereafter read thus:
SEC. 38. If the court after hearing finds that the applicant or adverse claimant
has title as stated in his application or adverse claim and proper for registration,
a decree of confirmation and registration shall be entered.
There can be no dispute that in the original registration cases under consideration, no
positive decree of registration was prayed for by any opponent, as categorically
required by section 34 of Act No. 496, as amended; and certainly none has been
decreed by the abovementioned final judgment of this Court, which was beyond its
power to amend, much less than of the lower court, when the latter in granting the
motion under consideration attempted to do so. It seems to me evident, therefore, that
even if the opponents themselves had sought such an amendment, it could not have

been legally made at such a late date for the simple reason that they had not applied
for a decree of registration in their opposition as required in said provision, and
furthermore, because the judgment of this Court had long before become final and
irrevocable. If the opponents themselves could not legally have achieved such an end,
how could their successor-in-interest, the movant-appellee?
What could be the purpose of Act No. 3621, section 1, amending Act No. 496, section
34, in providing that the opponent shall "apply for the remedy desired"? It is to
presumed that this phrase was there used for a purpose it would be an insult to the
intelligence of the lawmaker to understand the contrary. What could be that purpose?
To my mind, it could only be to establish a basis for the court's jurisdiction to decree
registration in favor of the opponent and a condition precedent for the exercise
thereof. The law undoubtedly aimed at duly apprising the applicant and any other
adverse claimants that such opponent was asserting a right to the registration and was
praying for that remedy, so that such applicant and other adverse claimants could duly
meet the pretensions of said opponent and protect their rights and interest
accordingly. Under the provision, if the opponent applied for a positive registration in his
favor as the remedy that he desired, in case he should prove title in himself proper for
registration, the court would have jurisdiction to grant him that remedy. To say now that
even if he should not apply for the remedy the court could still grant it to him, would be
tantamount to declaring the quoted phrase utterly useless and devoid of meaning.
In Government of the Philippine Islands vs. Tombis Trio (50 Phil., 708), this Court said:
In a cadastral proceeding, a court has no jurisdiction to decree a lot to one who
has put in no claim to it. The written declaration claiming certain described
property is the very basis of jurisdiction to render a judgment. . . .
While the present case is not concerned with a cadastral proceeding, it involves the
registration of land like such a proceeding and, as is well-known, a claim in a cadastral
proceeding, which is denominated "answer" is for the express purpose of securing the
registration of the land covered thereby in the name of the claimant. That "answer" is
the pleading which the claimant files in view of and against the petition or application
of the Director of Lands which starts the case, in much the same way as an opposition
or adverse claim in an ordinary registration case is in answer to the application of the
applicant which commences the latter proceeding. Hence, in my opinion, the doctrine
above-quoted from the Trio case is perfectly applicable herein.
It is likewise true that after Act No. 3621, more specifically on November 17, 1931, Act
No. 3901 was enacted, amending section 29 of Act No. 496 so as to read in part as
follows:
SEC. 29. After the filing of the application and before that issuance of the decree
of title by the Chief of the General Land Registration Office the land therein
described may be dealt with and instruments relating thereto shall be recorded
in the office of the register of deeds at any time before the issuance of the
decree of title, in the same manner as if no application had been made. The
interested party may, however, present such instruments to the Court of First
Instance instead of presenting them to the office of the register of deeds,
together with a motion that the same be considered in relation with
the application, and the court, after notice to the parties, shall order such land

registered subject to the incumbrance created by said instruments, or order the

decree of registration issued in the name of the buyer or of the person to whom
the property has been conveyed by said instruments. If such motion is made
after the decision has become final, the court shall require the interested party,
before granting his motion, to pay the fees which the register of deeds would
collect in accordance with section one hundred and fourteen of this Act, as
amended, if such instruments had been presented for registration in the office of
the register of deeds after registration of the original certificate of title. If the
order of the court abovementioned is received by the Chief of the Land
Registration Office after issuance of the decree of title, such order shall forthwith
be forwarded by said officer to the register of deeds concerned, for compliance
therewith. If the proceedings upon the application end in the issuance of a
decree of title, the property included therein shall, as soon as said decree has
been registered in the office of the register of deeds, as provided in section fortyone, become registered land under this Act, . . .. (Emphasis supplied.)
Of course, under the provision just quoted it was proper for the lower court to decree
the registration in favor of movant-appellee of the parcels of land whose registration
was ordered in favor of Rita Garchitorena, as original applicant, in G.R. Nos. 36385 and
36547, but "the court shall require the interested party, before granting his motion, to
pay the fees which the register of deeds would collect in accordance with section one
hundred and fourteen of this Act, as amended, if such instruments had been presented
for registration of the original certificate of title."
It is clear from the section last above-quoted that its provision are confined to
the application which starts the registration proceedings. The phrase "after the filing of
the application" in its first sentence can not refer but to that which the applicant files,
and this is the selfsame application which is alluded to in the remainder of the section. If
so, the provisions of said section do not apply to the opposition filed by the opponent.
The writer does not mean to be technical at all, but merely acts upon the principle that
this Court has to exercise its jurisdiction and powers by authority of law. Where the lawmaking body has seen fit to confine the provision to theapplication, it is not for this
Court to say that it would be more practical to extend it to the opposition. Where the
law is clear, the duty of the court is merely to apply it. Construction would be out of
place and, if attempted, would be no more nor less than judicial legislation. It would be
just as obnoxious to our system of government for the courts to legislate in the matter of
their own jurisdiction as it would be for the legislature to render judgment upon purely
judicial questions.
I am forced to the conclusion that movant-appellee (a) must pay the fees abovementioned pursuant to section 29 of Act No. 496, as amended, as a condition
precedent to the registration in his name of the parcels of land adjudicated to Rita
Garchitorena, and (b) must file a separate proceeding for the registration of the
parcels of land covered by the said oppositions or any of them, in the regular manner
and following the regular procedure.
=====

G.R. No. L-770

April 27, 1948

ANGEL T. LIMJOCO, petitioner,

vs.
INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.
Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner.
Bienvenido A. Tan for respondent.
HILADO, J.:
Under date of May 21, 1946, the Public Service Commission, through Deputy
Commissioner Fidel Ibaez, rendered its decision in case No. 4572 of Pedro O. Fragante,
as applicant for a certificate of public convenience to install, maintain and operate an
ice plant in San Juan, Rizal, whereby said commission held that the evidence therein
showed that the public interest and convenience will be promoted in a proper and
suitable manner "by authorizing the operation and maintenance of another ice plant of
two and one-half (2-) tons in the municipality of San Juan; that the original applicant
Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate
estate is financially capable of maintaining the proposed service". The commission,
therefore, overruled the opposition filed in the case and ordered "that under the
provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of
public convenience be issued to the Intestate Estate of the deceased Pedro Fragante,
authorizing said Intestate Estate through its Special or Judicial Administrator, appointed
by the proper court of competent jurisdiction, to maintain and operate an ice plant
with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of
San Juan and to sell the ice produced from said plant in the said Municipality of San
Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the
conditions therein set forth in detail (petitioner's brief, pp. 33-34).
Petitioner makes four assignments of error in his brief as follows:
1. The decision of the Public Service Commission is not in accordance with law.
2. The decision of the Public Service Commission is not reasonably supported by
evidence.
3. The Public Service Commission erred in not giving petitioner and the Ice and
Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable
opportunity to meet the increased demand.

4. The decision of the Public Service Commission is an unwarranted departure

from its announced policy with respect to the establishment and operation of ice
plant. (Pp. 1-2, petitioner's brief.)
In his argument petitioner contends that it was error on the part of the commission to
allow the substitution of the legal representative of the estate of Pedro O. Fragante for
the latter as party applicant in the case then pending before the commission, and in
subsequently granting to said estate the certificate applied for, which is said to be in
contravention of law.
If Pedro O. Fragante had not died, there can be no question that he would have had
the right to prosecute his application before the commission to its final conclusion. No
one would have denied him that right. As declared by the commission in its decision, he
had invested in the ice plant in question P 35,000, and from what the commission said
regarding his other properties and business, he would certainly have been financially
able to maintain and operate said plant had he not died. His transportation business
alone was netting him about P1,440 a month. He was a Filipino citizen and continued to
be such till his demise. The commission declared in its decision, in view of the evidence
before it, that his estate was financially able to maintain and operate the ice plant. The
aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was
one which by its nature did not lapse through his death. Hence, it constitutes a part of
the assets of his estate, for which a right was property despite the possibility that in the
end the commission might have denied application, although under the facts of the
case, the commission granted the application in view of the financial ability of the
estate to maintain and operate the ice plant. Petitioner, in his memorandum of March
19, 1947, admits (page 3) that the certificate of public convenience once granted "as a
rule, should descend to his estate as an asset". Such certificate would certainly be
property, and the right to acquire such a certificate, by complying with the requisites of
the law, belonged to the decedent in his lifetime, and survived to his estate and judicial
administrator after his death.
If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and
during the life of the option he died, if the option had been given him in the ordinary
course of business and not out of special consideration for his person, there would be
no doubt that said option and the right to exercise it would have survived to his estate
and legal representatives. In such a case there would also be the possibility of failure to
acquire the property should he or his estate or legal representative fail to comply with
the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to
apply for and acquire the desired certificate of public convenience the evidence
established that the public needed the ice plant was under the law conditioned only
upon the requisite citizenship and economic ability to maintain and operate the
service. Of course, such right to acquire or obtain such certificate of public
convenience was subject to failure to secure its objective through nonfulfillment of the
legal conditions, but the situation here is no different from the legal standpoint from that
of the option in the illustration just given.

Rule 88, section 2, provides that the executor or administrator may bring or defend
actions, among other cases, for the protection of the property or rights of the
deceased which survive, and it says that such actions may be brought or defended "in
the right of the deceased".
Rule 82, section 1, paragraph (a), mentions among the duties of the executor or
administrator, the making of an inventory of all goods, chattels, rights, credits, and
estate of the deceased which shall come to his possession or knowledge, or to the
possession of any other person for him.
In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the
present chief Justice of this Court draws the following conclusion from the decisions
cited by him:
Therefore, unless otherwise expressly provided by law, any action affecting the
property or rights(emphasis supplied) of a deceased person which may be
brought by or against him if he were alive, may likewise be instituted and
prosecuted by or against the administrator, unless the action is for recovery of
money, debt or interest thereon, or unless, by its very nature, it cannot survive,
because death extinguishes the right . . . .
It is true that a proceeding upon the application for a certificate of public convenience
before the Public Service Commission is not an "action". But the foregoing provisions
and citations go to prove that the decedent's rights which by their nature are not
extinguished by death go to make up a part and parcel of the assets of his estate
which, being placed under the control and management of the executor or
administrator, can not be exercised but by him in representation of the estate for the
benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And
if the right involved happens to consist in the prosecution of an unfinished proceeding
upon an application for a certificate of public convenience of the deceased before
the Public Service Commission, it is but logical that the legal representative be
empowered and entitled in behalf of the estate to make the right effective in that
proceeding.
Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil
Code, respectively, consider as immovable and movable things rights which are not
material. The same eminent commentator says in the cited volume (p. 45) that article
336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive
of all incorporeal rights which are also property for juridical purposes.
Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property
includes, among other things, "an option", and "the certificate of the railroad
commission permitting the operation of a bus line", and on page 748 of the same
volume we read:
However, these terms (real property, as estate or interest) have also been
declared to include every species of title, inchoate or complete, and

embrace rights which lie in contract, whether executory or executed. (Emphasis

supplied.)
Another important question raised by petitioner is whether the estate of Pedro O.
Fragrante is a "person" within the meaning of the Public Service Act.
Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the
jurisdiction of the State of Indiana:
As the estate of the decedent is in law regarded as a person, a forgery
committed after the death of the man whose name purports to be signed to the
instrument may be prosecuted as with the intent to defraud the estate. Billings vs.
State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77.
The Supreme Court of Indiana in the decision cited above had before it a case of
forgery committed after the death of one Morgan for the purpose of defrauding his
estate. The objection was urged that the information did not aver that the forgery was
committed with the intent to defraud any person. The Court, per Elliott, J., disposed of
this objection as follows:
. . . The reason advanced in support of this proposition is that the law does not
regard the estate of a decedent as a person. This intention (contention) cannot
prevail. The estate of the decedent is a person in legal contemplation. "The word
"person" says Mr. Abbot, "in its legal signification, is a generic term, and includes
artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co.,
4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another
work that 'persons are of two kinds: natural and artificial. A natural person is a
human being. Artificial persons include (1) a collection or succession of natural
persons forming a corporation; (2) a collection of property to which the law
attributes the capacity of having rights and duties. The latter class of artificial
persons is recognized only to a limited extent in our law. "Examples are the estate
of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own cases
inferentially recognize the correctness of the definition given by the authors from
whom we have quoted, for they declare that it is sufficient, in pleading a claim
against a decedent's estate, to designate the defendant as the estate of the
deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this
definition as correct, there would be a failure of justice in cases where, as here,
the forgery is committed after the death of a person whose name is forged; and
this is a result to be avoided if it can be done consistent with principle. We
perceive no difficulty in avoiding such a result; for, to our minds, it seems
reasonable that the estate of a decedent should be regarded as an artificial
person. It is the creation of law for the purpose of enabling a disposition of the
assets to be properly made, and, although natural persons as heirs, devises, or
creditors, have an interest in the property, the artificial creature is a distinct legal
entity. The interest which natural persons have in it is not complete until there has
been a due administration; and one who forges the name of the decedent to
an instrument purporting to be a promissory note must be regarded as having

intended to defraud the estate of the decedent, and not the natural persons
having diverse interests in it, since ha cannot be presumed to have known who
those persons were, or what was the nature of their respective interest. The
fraudulent intent is against the artificial person, the estate and not the
natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E.
914-915.)
In the instant case there would also be a failure of justice unless the estate of Pedro O.
Fragrante is considered a "person", for quashing of the proceedings for no other reason
than his death would entail prejudicial results to his investment amounting to P35,000.00
as found by the commission, not counting the expenses and disbursements which the
proceeding can be presumed to have occasioned him during his lifetime, let alone
those defrayed by the estate thereafter. In this jurisdiction there are ample precedents
to show that the estate of a deceased person is also considered as having legal
personality independent of their heirs. Among the most recent cases may be
mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the
principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave
judgment in favor of said estate along with the other plaintiffs in these words:
. . . the judgment appealed from must be affirmed so far as it holds that
defendants Concepcion and Whitaker are indebted to he plaintiffs in the
amount of P245,804.69 . . . .
Under the regime of the Civil Code and before the enactment of the Code of Civil
Procedure, the heirs of a deceased person were considered in contemplation of law as
the continuation of his personality by virtue of the provision of article 661 of the first
Code that the heirs succeed to all the rights and obligations of the decedent by the
mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46.
However, after the enactment of the Code of Civil Procedure, article 661 of the Civil
Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22. In that
case, as well as in many others decided by this Court after the innovations introduced
by the Code of Civil Procedure in the matter of estates of deceased persons, it has
been the constant doctrine that it is the estate or the mass of property, rights and assets
left by the decedent, instead of the heirs directly, that becomes vested and charged
with his rights and obligations which survive after his demise.
The heirs were formerly considered as the continuation of the decedent's personality
simply by legal fiction, for they might not have been flesh and blood the reason was
one in the nature of a legal exigency derived from the principle that the heirs
succeeded to the rights and obligations of the decedent. Under the present legal
system, such rights and obligations as survive after death have to be exercised and
fulfilled only by the estate of the deceased. And if the same legal fiction were not
indulged, there would be no juridical basis for the estate, represented by the executor
or administrator, to exercise those rights and to fulfill those obligations of the deceased.
The reason and purpose for indulging the fiction is identical and the same in both cases.
This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2
Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a

collection of property to which the law attributes the capacity of having rights and
duties", as for instance, the estate of a bankrupt or deceased person.
Petitioner raises the decisive question of whether or not the estate of Pedro O.
Fragrante can be considered a "citizen of the Philippines" within the meaning of section
16 of the Public Service Act, as amended, particularly the proviso thereof expressly and
categorically limiting the power of the commission to issue certificates of public
convenience or certificates of public convenience and necessity "only to citizens of the
Philippines or of the United States or to corporations, copartnerships, associations, or
joint-stock companies constituted and organized under the laws of the Philippines", and
the further proviso that sixty per centum of the stock or paid-up capital of such entities
must belong entirely to citizens of the Philippines or of the United States.
Within the Philosophy of the present legal system, the underlying reason for the legal
fiction by which, for certain purposes, the estate of the deceased person is considered
a "person" is the avoidance of injustice or prejudice resulting from the impossibility of
exercising such legal rights and fulfilling such legal obligations of the decedent as
survived after his death unless the fiction is indulged. Substantially the same reason is
assigned to support the same rule in the jurisdiction of the State of Indiana, as
announced in Billings vs. State, supra, when the Supreme Court of said State said:
. . . It seems reasonable that the estate of a decedent should be regarded as an
artificial person. it is the creation of law for the purpose of enabling a disposition
of the assets to be properly made . . . .
Within the framework and principles of the constitution itself, to cite just one example,
under the bill of rights it seems clear that while the civil rights guaranteed therein in the
majority of cases relate to natural persons, the term "person" used in section 1 (1) and
(2) must be deemed to include artificial or juridical persons, for otherwise these latter
would be without the constitutional guarantee against being deprived of property
without due process of law, or the immunity from unreasonable searches and seizures.
We take it that it was the intendment of the framers to include artificial or juridical, no
less than natural, persons in these constitutional immunities and in others of similar
nature. Among these artificial or juridical persons figure estates of deceased persons.
Hence, we hold that within the framework of the Constitution, the estate of Pedro O.
Fragrante should be considered an artificial or juridical person for the purposes of the
settlement and distribution of his estate which, of course, include the exercise during
the judicial administration thereof of those rights and the fulfillment of those obligations
of his which survived after his death. One of those rights was the one involved in his
pending application before the Public Service Commission in the instant case,
consisting in the prosecution of said application to its final conclusion. As stated above,
an injustice would ensue from the opposite course.
How about the point of citizenship? If by legal fiction his personality is considered
extended so that any debts or obligations left by, and surviving, him may be paid, and
any surviving rights may be exercised for the benefit of his creditors and heirs,
respectively, we find no sound and cogent reason for denying the application of the

same fiction to his citizenship, and for not considering it as likewise extended for the
purposes of the aforesaid unfinished proceeding before the Public Service Commission.
The outcome of said proceeding, if successful, would in the end inure to the benefit of
the same creditors and the heirs. Even in that event petitioner could not allege any
prejudice in the legal sense, any more than he could have done if Fragrante had lived
longer and obtained the desired certificate. The fiction of such extension of his
citizenship is grounded upon the same principle, and motivated by the same reason, as
the fiction of the extension of personality. The fiction is made necessary to avoid the
injustice of subjecting his estate, creditors and heirs, solely by reason of his death to the
loss of the investment amounting to P35,000, which he has already made in the ice
plant, not counting the other expenses occasioned by the instant proceeding, from the
Public Service Commission of this Court.
We can perceive no valid reason for holding that within the intent of the constitution
(Article IV), its provisions on Philippine citizenship exclude the legal principle of extension
above adverted to. If for reasons already stated our law indulges the fiction of
extension of personality, if for such reasons the estate of Pedro O. Fragrante should be
considered an artificial or juridical person herein, we can find no justification for refusing
to declare a like fiction as to the extension of his citizenship for the purposes of this
proceeding.
Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the
evidence of record, he would have obtained from the commission the certificate for
which he was applying. The situation has suffered but one change, and that is, his
death. His estate was that of a Filipino citizen. And its economic ability to appropriately
and adequately operate and maintain the service of an ice plant was the same that it
received from the decedent himself. In the absence of a contrary showing, which does
not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not,
there is the simple expedient of revoking the certificate or enjoining them from inheriting
it.
Upon the whole, we are of the opinion that for the purposes of the prosecution of said
case No. 4572 of the Public Service Commission to its final conclusion, both the
personality and citizenship of Pedro O. Fragrante must be deemed extended, within the
meaning and intent of the Public Service Act, as amended, in harmony with the
constitution: it is so adjudged and decreed.
Decision affirmed, without costs. So ordered.
Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

Separate Opinions

PERFECTO, J., dissenting:

Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a certificate
of public convenience to operate an ice plant in San Juan, Rizal. The limitation is in
accordance with section 8 of Article XIV of the Constitution which provides
No franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines or to
corporations or other entities organized under the laws of the Philippines, sixty per
centum of the capital of which is owned by citizens of the Philippines, nor such
franchise, certificate or authorization be exclusive in character or for a longer
period than fifty years. No franchise granted to any individual, firm or
corporation, except under the condition that it shall be subject to amendment,
alteration, or repeal by Congress when the public interest so requires.
The main question in this case is whether the estate of Pedro O. Fragrante fulfills the
citizenship requirement. To our mind, the question can be restated by asking whether
the heirs of Pedro O. Fragrante fulfill the citizenship requirement of the law.
The estate is an abstract entity. As such, its legal value depends on what it represents. It
is a device by which the law gives a kind of personality and unity to undetermined
tangible persons, the heirs. They inherit and replace the deceased at the very moment
of his death. As there are procedural requisites for their identification and determination
that need time for their compliance, a legal fiction has been devised to represent
them. That legal fiction is the estate, a liquid condition in process of solidification.
The estate, therefore, has only a representative value. What the law calls estate is, a
matter of fact, intended to designate the heirs of the deceased. The question,
therefore, in this case, boils down to the citizenship of the heirs of Fragrante.
There is nothing in the record to show conclusively the citizenship of the heirs of
Fragrante. If they are Filipino citizens, the action taken by the Public Service Commission
should be affirmed. If they are not, it should be reversed.
Petitioner alleges that the estate is just a front or dummy for aliens to go around the
citizenship constitutional provision. It is alleged that Gaw Suy, the special administrator
of the estate, is an alien.
We are of the opinion that the citizenship of the heirs of Fragrante should be
determined by the Commission upon evidence that the party should be present. It
should also determine the dummy question raised by the petitioner.
We are of opinion and so vote that the decision of the Public Service Commission of
May 21, 1946, be set aside and that the Commission be instructed to receive evidence
of the above factual questions and render a new decision accordingly.
G.R. No. 559 March 14, 1903

MANUEL BARRIOS Y BARREDO,Plaintiff-Appellant, vs. MARIA PASCUALA DOLOR, ET

AL.,Defendants-Appellees.
Simplicio del Rosario, for appellant.
Maria Pascuala Dolor, appellee.
MAPA, J.:
The plaintiff has brought an action for the recovery from the defendants, heirs of the
late Don Ciriaco Demonteverde, of one-half of a sugar estate and the stock thereon,
which he claims to have purchased from the said Don Ciriaco Demonteverde. In
support of his contention as to the law of the case he attached to the complaint a
public instrument which appears to have been executed by himself and
Demonteverde, February 3, 1883, in which, according to the plaintiff, a stipulation is
made for a contract of partnership for the operation of the said estate, and,
furthermore, a community, of ownership is established with respect to the estate in favor
of the two parties to this instrument. It does not appear that this instrument has been
recorded in the registry of property.chanrobles virtual law library
Service of the complaint having been had on the defendants, Doa Maria Pascuala
Dolor raised an incidental issue as a previous question, praying that the instrument
referred to be ruled out of evidence on the ground that it had not been recorded in
the registry of property, and that it be returned to the plaintiff without leaving in the
record any transcript or copy thereof or extract therefrom, resting this contention upon
article 389 of the Mortgage Law. This motion was granted by the judge by order of the
24th of March, 1898, against which the plaintiff appeals.chanrobles virtual law library
The article cited is literally as follows: "From the time this law goes into operation the
ordinary and special courts and the Government offices will not admit any document
or instrument by which rights subject to inscription according to this law are constituted,
transmitted, acknowledged, modified, or extinguished, unless recorded in the register, if
the object of the presentation of such document is to enforce, to the prejudice of a
third person, a right which should have been recorded."chanrobles virtual law library
In view of the latter part of this article, the question has been raised in this incidental
issue whether the defendants, as heirs of Don Ciriaco Demonteverde, can and should
be regarded as third persons for the purposes of the Mortgage Law, with respect to the
contract executed by Demonteverde and evidenced by the instrument above
mentioned.chanrobles virtual law library
The Mortgaged Law itself, in article 27, gives the definition of a third person, which is, "he
who has not taken part in the act or contract recorded." chanrobles virtual law library
According to this parties to a contract are not third persons; consequently,
Demonteverde was not a third person with respect to the contract entered into by him
and evidenced by the instrument in question. He not being such a third person, neither
can his heirs be so regarded, nor should they be so regarded with respect to the same

contract, because they are only the judicial continuation of his personality, they having
been subrogated, by virtue of the right of succession, to all his rights and obligations, in
accordance with provisions of article 661 of the Civil Code.chanrobles virtual law library
This doctrine, which is a mere consequence of the general principles of law, has
received express sanction, in the decisions of the supreme court of Spain. In its
judgment of the 27th of January, 1881, the latter held that acts, both in court and out,
consented to by the person who lawfully took part therein, are effective with respect to
the heirs or successors of such parties, who are not be regarded as third persons for this
purpose; and in its judgment of the 28th of January, 1892, it was decided by the same
court that heirs are nothing more than the continuation of the legal personality of their
decedent and can not be considered in any degree as third persons within the
meaning of article 27 of the Mortgage Law.chanrobles virtual law library
The defendants, therefore, are not third persons with respect to the contract entered
into by their decedent, Don Ciriaco Demonteverde, in the instrument of February 3,
1883, and they therefore can not avail themselves of the prohibition contained in article
389 of the Mortgage Law for the purpose of opposing the admission of this instrument as
evidence in the case, because not recorded in the registry of property. This prohibition
was established solely and exclusively in favor of those who, within the meaning of that
law, are third persons. Were it otherwise, the position of the defendants would be
superior to that of the person whom they derived their rights, because he, not being a
third person, could not set up such an exception. This would certainly be most illogical
from a legal point of view, in view of the fact that the heir is, as above stated, a mere
continuation of the civil personality of his decedent.chanrobles virtual law library
The defendants not being third persons, it becomes unnecessary to decide whether the
instrument referred to is or is not subject to inscription in accordance with article 2 of the
Mortgage Law, because, at all events, and however this may be, the mere failure to
record the instrument in the registry of property can not be a bar to its admission as
evidence in this case, as the action is not brought against a third person in the sense of
this word as used in the law referred to.chanrobles virtual law library
Consequently we reverse and annul the order of the court below, overruling the motion
made on behalf of Doa Maria Pascuala Dolor, without special condemnation as to
the costs of either instance. So ordered.chanrobles virtual law library
Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.
Torres, J., did not sit in this case.
G.R. No. L-4777

November 11, 1908

SUILIONG & CO., as liquidators of The Yek Tong Lim Fire, Marine, and Insurance Co.,
Ltd., plaintiffs-appellees,
vs.
SILVINA CHIO-TAYSAN, defendant-FRANCISCA JOSE, intervener-appellant.

Leodegario Azarraga, for appellant.

Carlos Ledesma, and Ramon Fernandez, for appellees.

CARSON, J.:
Avelina Caballero, deceased, owned during her lifetime a certain tract of land, which
was duly inscribed in her name in the land registry of the city of Manila. On March 27,
1903, she borrowed from Francisca Jose, the intervener and appellant in this action,
1,000 pesos, Mexican currency, and turned over her title deeds to this tract of land to
the lender as security for the loan, but no entry touching the transaction was noted in
the land registry.
Avelina Caballero died on the 5th day of June, 1903, and thereafter Silvina ChioTaysan, the defendant in this action, instituted in the Court of First Instance of Manila an
action, known, under the system of civil procedure in existence prior to the adoption of
the present code, as an "action for the declaration of heirship" and on the 5th day of
August, 1903, the following order declaring her to be the only and exclusive heir of
Avelina Caballero, deceased, was issued in that proceeding:
[United States of America, Philippine Islands. In the Court of First Instance of
Manila. Part III.]
It having been proven by both documental and oral evidence introduced in the
above-cited case, that the petitioner Silvina Chio-Taysan y Caballero is the
daughter of Jose Chio-Taysan and Avelina Caballero, who died on the 29th of
April, 1895, and on the 5th of June, 1903, respectively, without leaving any other
descendant or having executed any will; and there being no objection
whatever to the claim of the petitioner, it is hereby declared that the said Silvina
Chio-Taysan y Caballero is the legal heir abintestato of her deceased parents,
the said Jose Chio-Taysan and Avelina Caballero, in conformity with the
provisions of the Civil Code now in force. Let a certificate of this decision be
issued to the interested party and those who may hereafter apply for the same.
So ordered.
A.S. CROSSFIELD, Judge.
On March 9, 1904, the registrar of deeds of the city of Manila by virtue of this order
entered the following inscription in the land registry whereby the said Silvina ChioTaysan is made to appear as the owner of the land in question:
Ninth inscription. Urban property. A parcel of land and a house of a strong
materials, tile roofed, built thereon, marked number eight, situated in Calle
Lavezares of the district of Binondo, this city, the remaining description of which
appears in the first inscription of this number. It has no encumbrances. Doa
Avelina Caballero y Bugnot, of age, widow, of this vicinity, is the owner of this

property under a title of repurchase, according to the proceeding inscription.

Said lady and her husband, Don Jose Chio-Taysan, died on June 5, 1903, and
April 29, 1895, respectively, and neither of them having executed a will, the
corresponding intestate proceedings were instituted, in which an order was
issued on August 5, 1903, by A.S. Crossfield, judge of the third sala of the Court of
First Instance of this city, declaring their daughter, Silvina Chio-Taysan y
Caballero, their intestate heir. By virtue thereof, I inscribe, in favor of the said
Silvina Chio-Taysan y Caballero, the right she was acquired over the property of
this number, under title by intestate inheritance. All the above appears from the
previous records and from the copy of the above judicial order, issued by Don
Salvador Chofre, assistant clerk of the Court of First Instance of this city, on
August 5, 1903, which document was presented to this registry at 8:50 a. m. on
the 25th day of February last, as per record No. 452, page 266, of the 7th volume
of the Diario. And all the above being in accordance with the document above
referred to, I sign these presents in Manila, on March 9, 1904 Fees: $7.50, No. 7,
Tariff of Fees. Alberto Barretto.
On the 26th day of May, 1904, the said Silvina Chio-Taysan borrowed the sum of P2,500
from the Fire and Marine Insurance and Loan Co., of which the plaintiff is the lawfully
appointed liquidator, and mortgaged the land in question as security for the
repayment of the loan.
Thereafter the husband of Silvina Chio-Taysan instituted special proceedings under the
provisions of the present Code of Civil Procedure, for the administration of the estate of
Avelina Caballero, deceased, and on the 16th day of October, 1905, he was, in
accordance with his petition, appointed administrator; and thereupon, submitted as
such administrator, an inventory of the property of the estate, in which was included
the land in question; and on the 28th of November, 1905, Francisca Jose, the intervener
in this action, submitted her claim to the commissioner appointed in these proceedings,
for the sum of 1,000 pesos, Mexican currency, loaned the deceased, as above set out,
on the 28th day of March, 1904, which claim was duly approved on the 31st of August,
1906.
On the 10th day of October, 1906, the plaintiff in this action filed its complaint against
the defendant, Silvina Chio-Taysan, praying for judgment for the amount loaned her as
above set out, and the foreclosure of its mortgage upon the land. To this complaint the
defendant, Silvina Chio-Taysan, filed her answer, admitting the facts alleged in the
complaint and declining to interpose any objection to the prayer of the complaint; but
on the 30th of October, 1907, Francisca Jose was permitted to intervene and file her
separate "complaint in intervention" wherein she set out the facts touching the loan
made by her to Avelina Caballero, deceased, and prayed that the court declare the
mortgage executed by Silvina Chio-Taysan rescinded and of no effect; and further that
it annul the inscription in the land registry of the title of Silvina Chio-Taysan to the land in
question; and declare this land subject to her claim against the estate of Avelina
Caballero, deceased. lawphil.net

The trial court entered judgment in favor of the plaintiff and against both the defendant
and the intervener in conformity with the prayer of the complaint, and the intervener
brings that judgment before this court for review upon her bill of exceptions duly signed
and certified.
We do not think that the judgment of the trial court can be sustained in so far as it
wholly denies relief to the intervener, Francisca Jose. The trial judge denied the relief
prayed for by the intervener, on the ground that her intervention in this action was for
the purpose of the written title deeds on the land, and that, since she admitted that she
had admitted her claim against the estate of Avelina Caballero, deceased, to the
committee appointed in the administration proceedings, she must be taken to have
abandoned, whatever lien she may have held as security therefor, in accordance with
the provisions of section 708 of the Code of Civil Procedure.
The prayer of her complaint in intervention, however, is merely for the rescission and
annulment of the mortgage contract between the loan company and the defendant
and of the inscription in the land registry of the title of the defendant, and a declaration
that as a creditor of the estate she has a superior right to that of the plaintiff company
in the proceeds of any sale of the land in question. She does not seek to enforce her
claim and recover her debt in this proceeding, but merely to prevent the plaintiff from
securing a judgment in this action which would take out of the estate property which
she believes to be subject to her claim set up in the administration proceedings. If her
contentions are well founded, and if the estate of the deceased is subject to the
payment of the debts of the deceased in such form that the heirs of the deceased
could not alienate this land free of the claims of the creditors of the deceased against
the land, for the payment of their claims against the deceased, the intervener is clearly
entitled to at least so much of the relief she seeks in this action as will have the effect of
preventing the sale of this land under the plaintiff's foreclosure proceedings, free of the
claims of creditors of the deceased, because, if the plaintiffs in this action were
permitted to foreclosure their mortgage and to recover their debt from the sale of the
land in question, it might well be that there would not be sufficient property in the
estate to pay the amount of the claim of the intervener against the estate.
Had the transactions above set out in taken place under the system of law in force in
these Islands immediately prior to the 1st day of October, 1901, when the new Code of
Civil Procedure went into effect, there would be no difficulty in determining the
respective rights of the various parties to this action. Article 657 of the Civil Code
provides that Los derechos a la succession de una persona se transmiten desde el
momento de su muerte. (The rights to the succession of another are transmitted from
the moment of his death); and article 661 provides thatLos herederos suceden al
difunto por el hecho solo de su muerte en todos sus derechos y obligaciones. (Heirs
succeed the deceased by the mere fact of his death, in all rights and obligations).
Under these, and co-related provisions of the Civil Code, a sole and exclusive heir (as
defined in article 660 of the Civil Code) became the owner of the property and was
charged with the obligations of the deceased at the moment of his death, upon
precisely the same terms and conditions as the property was held and as the
obligations had been incurred by the deceased prior to his death, save only that when

he accepted the inheritance, "with benefit of an inventory" he was not held liable for
the debts and obligations of the deceased beyond the value of the property which
came into his hands.
The property of the deceased, both real and personal, became the property of the heir
by the mere fact of death of his prodecessor in interest, and he could deal with it in
precisely the same way in which the deceased could have dealt with it, subject only to
the limitations which by law or by contract were imposed upon the deceased himself.
He could alienate or mortgage it with the same freedom as could the deceased in his
lifetime; the unsecured debts and other personal obligations of the deceased
becoming the unsecured debts and personal obligations of the heir for which he was
held personally responsible in precisely the same manner as the deceased, save only,
as has been said before, where he availed himself of the privilege of taking the estate
"with the benefit of an inventory," in which case the extent of his liability was limited to
the value of the estate which came into his hands, though in other respects its
character as a personal liability remained unchanged. Thus death created no new lien
in favor of creditors upon the property of the deceased, which was not in existence at
the time of his death; personal debts and obligations of the deceased becoming the
personal debts and obligations of the heir, to whom the creditor was compelled to look
for payment, with no new right in or to the property of the decease, in the hands of the
heir, which he did not have in or to such property in the hands of the deceased. (Title 3,
Book of the Civil Code.)
Spanish procedural law provided an action known as an action for the declaration of
heirship (declaracion de herederos) whereby one claiming the status of heir could
have his right thereto judicially declared, and this judicial declaration of heirship unless
and until set aside or modified in a proper judicial proceeding, was evidence of the
fact of heirship which the officials charged with the keeping of the public records,
including the land registry, were bound to accept as a sufficient basis for the formal
entry, in the name of the heir, of ownership of the property of the deceased.
It is evident therefore that, unless the provisions of Spanish procedural and substantive
law, in force when the new Code of Civil Procedure went into effect, have been
repealed or modified thereby, the defendant in this action, Silvina Chio-Taysan, who
was judicially declared to be the sole and universal heir of Avelina Caballero,
deceased, became, by the mere fact of the death of Caballero, the absolute owner of
the tract of land in question, subject only to such liens thereon as may have existed
prior thereto, the personal obligations of the deceased also passing to her at the same
time; that, upon proof of such judicial declaration of heirship, the register of deeds of
the city of Manila properly entered Chio-Taysan in the land registry as the owner of this
land by right of inheritance; and that the Loan Company, of which the plaintiffs are the
duly appointed liquidators, was entitled to rely on the properly noted entries in the land
registry and that the company's mortgage deed from Chio-Taysan, in whose name the
land is registered, could not be affected by the unrecorded claim of the indebtedness
of the intervener, who must look to the heirs for the recovery of her debt.

But both the substantive and procedural law touching rights of succession and their
enforcement, which were in force in these Islands when the new Code of Civil
Procedure went into effect, have, to a greater or less degree, been repealed or
modified by its enactment; and we are of opinion that, under the provisions of the new
code, the heir is not a such personally responsible for the debts of the deceased, in
whole or in part; and on the other hand, the property of the deceased comes to him
charged with the debts of the deceased, so that he can not alienate or charge it free
of such debts, until and unless they are extinguished either by payment, prescription, or
satisfaction in one or other of the modes recognized by law.
It must be admitted that we can not point out the specific section of the new Code of
Civil Procedure which in express terms repeals the old law and formally enacts the new
doctrine of succession just laid down; but we think that an examination of the various
provisions of that code touching the administration of the estates of deceased person
leaves no room for doubt that they do so by necessary implication.
The legislators who enacted this code were more especially acquainted with the
American and English systems of legislation, and in most of its provisions closely adhered
to American precedent. It substantially repeals in toto the proceedings prescribed
under the old law for the administration of estates of deceased persons, and substitutes
therefor a system similar to that generally adopted in the United States; most of its
provisions having been borrowed word for word from the codes of one or other of the
various States. The substantive law in force in these Islands being in many respects, and
especially in regard to rights of inheritance, wholly different from that in force in the
various States from which the new system of administration of the estates of deceased
persons was adopted, many irreconcilable conflicts are to be found between the
provisions of the new and the old law, so that it becomes necessary either to declare a
great part of the provisions of the new Code of Procedure void and no effect, as wholly
inapplicable, or to hold that in such cases the provisions of substantive as well as
procedural law in conflict or inconsistent with the provisions of the new Code of
Procedure are repealed, or amended by the substitution of such other provisions as are
clearly necessary as a basis upon which the new provisions of procedural law are
predicated.
An examination more especially of sections 597, 644, 695, 727, 729, 731, 733, and 749 of
the Code of Civil Procedure, read together with the remaining provisions for the
administration of the estates of deceased persons, clearly indicates that the provisions
of articles 660 and 661 of the Civil Code have been abrogated.
These provisions of the new code clearly demonstrate that the
terms heredero and legatario, as defined in the Civil Code (art. 660), are not
synonymous with the words "heir" and "legatee," as used in the new code; the word
"heir" in the new code being technically and applicable only to a relative taking
property of an intestate by virtue of the laws of descent, devisee and legatee being
reserved for all persons whether relatives or not, taking respectively real or personal
property by virtue of a will; while heredero in the Civil Code was applicable not only to
one who would be called an "heir," under the provisions of the new code, but also to

one, whether relative or not, who took what might be called "a residuary estate under a
will" (el que sucede a titulo universal).
It appears also from an examination of these provisions that the legislature has provided
no machinery whereby an absolute right on the part of the heir to succeed by the
mere fact of death to all the rights and property of the deceased may be enforced,
without previous payment or provision of the payment of the debts; and on the other
hand, it has provided machinery for the enforcement of the debts and other
obligations of the deceased, not as debts or obligations of the heir, but as debt or
obligations of the deceased, to the payment of which the property of the deceased
may be subjected wherever it be found. Thus section 597 expressly provides that, in
those cases where settlement of an intestate estate may be made without legal
proceedings, either by a family council, as known under the Spanish law, or by an
agreement in writing executed by all the heirs, the real estate of the deceased remains
charged with liability to creditors of the deceased for two years after the settlement,
"notwithstanding any transfers thereof that may have been made;" and we think the
inference is clear that the legislator in this section recognizes and affirms the doctrine
that, prior to the date of such settlement, the real estate at least was charged in like
manner with the debts of the deceased. So it will be found that, where the legal
proceedings are had looking to the settlement of testate or intestate estates, provision
is made for the recovery of claims against the deceased, not by proceedings directed
against the heir, but by proceedings looking directly to the subjection of the property of
the deceased to the payment of such claims; the property both real and personal
being, in express terms, made chargeable with the payment of these debts, the
executor or administrator having the right to the possession of the real as well as the
personal property, to the exclusion of the heirs, so long as may be necessary for that
purpose (secs. 727 and 729).
For practical purposes it may well be said that in the eye of the law, where there is no
remedy to enforce an alleged right when it is invaded, the existence of the right may
safely be denied; and where the law furnishes a remedy whereby one may enforce a
claim, that claim is a right recognized and established by the law. The new Code of
Procedure furnishing no remedy whereby the provisions of article 661 of the of the Civil
Code may be enforced, in so far as they impose upon the heredero (heir) the duty of
assuming as a personal obligation all the debts of the deceased, at least to the extent
of the value of the property received from the estate; or in so far as they give to
the heredero the reciprocal right to receive the property of the deceased, without such
property being specifically subjected to the payment of the debts to the deceased by
the very fact of his deceased, these provisions of article 661 may properly be held to
have been abrogated; and the new code having provided a remedy whereby the
property of the deceased may always be subjected to the payment of his debts in
whatever hands it may be found, the right of a creditor to a lien upon the property of
the deceased, for the payment of the debts of the deceased, created by the mere
fact of his death, may be said to be recognized and created by the provisions of the
new code. (Pavia vs. De la Rosa, 8 Phil. Rep., 70).

It is evident, therefore, that a judgement in an action for the declaration of heirship in

favor of one or more heirs could not entitle such persons to be recognized as the owner
or owners of the property of the deceased on the same terms as such property was
held by the deceased, for it passes to the heir, under the new code, burdened with all
the debts of the deceased, his death having created a lien thereon for the benefit of
creditor; and indeed an examination of the proceedings prescribed in the new Code
of Civil Procedure for the administration and distribution of the estates of deceased
persons leaves no room for doubt that those proceedings are exclusive of all other
judicial proceedings looking to that end, and supersede the judicial proceeding for the
declaration of heirship, as recognized in the old procedure, at least so far as that
proceeding served as a remedy whereby the right of specific persons to succeed to
the rights and obligations of the deceased as his heirs might be judicially determined
and enforced.
Examining the facts in the case at bar, in the light of the doctrine as to the law of
succession as thus modified and amended by the new Code of Civil Procedure, which
went into effect prior to the death of Avelina Caballero, it is evident that her death
created a lien upon her property in favor of the intervener Francisca Jose, for the
payment of the debt contracted by her during her lifetime, and that this lien ought to
have and has priority to any lien created upon this property by the heir of the
deceased; that the judicial declaration of heirship in favor of Silvina Chio-Taysan, could
not and did not furnish a basis for an entry in the land registry of the name of Silvina
Chio-Taysan as the absolute owner of the property of Avelina Caballero; that such
entry, improperly made, could not and did not prejudice the lien of the intervener,
Francisca Jose, for the debt due her by the deceased (Mortgage Law, art. 33); and
that the mortgage of the property of the deceased by her heir, Silvina Chio-Taysan,
was subject to the prior lien of the intervener, Francisca Jose, for the payment of her
debt.
It is not necessary for us to consider the action of the court below in ordering the
foreclosure of the mortgage, in so far as it affects the defendant Silvina Chio-Taysan
who did not appeal; but we think that the intervener, who is seeking to subject the
property of the deceased to the payment of her debt in the administration
proceedings now pending, is clearly entitled to so much of the relief prayed for as will
have the effect of preventing the application of the proceeds of the sale of this land
under foreclosure proceedings to the payment of debts contracted by the heir until
and unless it shall appear that the residue of the estate of the deceased is sufficient to
satisfy her claim. Such provision for the protection of her rights having been made, the
other relief prayed for by her may properly be denied, since a provision subjecting the
land in question to the payment of her claim against the estate of Avelina Caballero,
deceased, fully and sufficiently protects her rights in the premises, and her rights having
been secured, she has no proper interest in the rescission of the mortgage contract
between plaintiff and defendant, or the cancellation of the inscription of the
defendant's title as heir in the land registry.
The judgment of the trial court should, therefore, be modified in accordance with the
foregoing principles, and the record will be returned to the trial court where judgment

will be entered modifying the judgment, by providing that the proceeds of the sale of
the land under the foreclosure proceedings will be deposited with the clerk of the
court, where it will be retained until the amount of the debt due the intervener and
unpaid in the course of the administration of the estate of Avelina Caballero shall have
been ascertained, whereupon the said funds shall be applied: first, to extinguish the
unpaid residue, if any, of the claim of the intervener; second, to pay the debt due the
plaintiff in this action; and finally, the residue, if any, to be paid to the estate of the
deceased; the intervener to have her costs in this action in both instances. So ordered.
Arellano, C.J., Torres, Mapa, and Willard, JJ., concur.
Tracey, J., concurs in the result
G.R. No. L-44837

November 23, 1938

SOCORRO LEDESMA and ANA QUITCO LEDESMA, plaintiffs-appellees,

vs.
CONCHITA MCLACHLIN, ET AL., defendants-appellants.
Adriano T. de la Cruz for appellants.
Simeon Bitanga for appellees.

VILLA-REAL, J.:
This case is before us by virtue of an appeal taken by the defendants Conchita
McLachlin, Lorenzo Quitco, Jr., Sabina Quitco, Rafael Quitco and Marcela Quitco, from
the decision of the Court of First Instance of Occidental Negros, the dispositive part of
which reads:
For the foregoing considerations, the court renders judgment in this case
declaring Ana Quitco Ledesma an acknowledged natural daughter of the
deceased Lorenzo M. Quitco, for legal purposes, but absolving the defendants
as to the prayer in the first cause of action that the said Ana Quitco Ledesma be
declared entitled to share in the properties left by the deceased Eusebio Quitco.
As to the second cause of action, the said defendants are ordered to pay to the
plaintiff Socorro Ledesma, jointly and severally, only the sum of one thousand five
hundred pesos(P1,500), with legal interest thereon from the filing of this complaint
until fully paid. No pronouncement is made as to the costs. So ordered.
In support of their appeal, the appellants assign the following errors allegedly
committed by the trial court in its aforesaid decision:
1. That the trial court erred in holding, that the action for the recovery of the sum
of P1,500, representing the last installment of the note Exhibit C has not yet
prescribed.

2. That the trial court erred in holding that the property inherited by the
defendants from their deceased grandfather by the right of representation is
subject to the debts and obligations of their deceased father who died without
any property whatsoever.lawphi1.net
3. That the trial court erred in condemning the defendants to pay jointly and
severally the plaintiff Socorro Ledesma the sum of P1,500.
The only facts to be considered in the determination of the legal questions raised in this
appeal are those set out in the appealed decision, which have been established at the
trial, namely:
In the year 1916, the plaintiff Socorro Ledesma lived maritally with Lorenzo M.
Quitco, while the latter was still single, of which relation, lasting until the year
1921, was born a daughter who is the other plaintiff Ana Quitco Ledesma. In
1921, it seems hat the relation between Socorro Ledesma and Lorenzo M. Quitco
came to an end, but the latter executed a deed (Exhibit A), acknowledging the
plaintiff Ana Quitco Ledesma as his natural daughter and on January 21, 1922,
he issued in favor of the plaintiff Socorro Ledesma a promissory note (Exhibit C),
of the following tenor:
P2,000. For value received I promise to pay Miss Socorro Ledesma the sum of two
thousand pesos (P2,000). Philippine currency under the following terms: Two
hundred and fifty pesos (P250) to be paid on the first day of March 1922; another
two hundred and fifty pesos (P250)to be paid on the first day of
November 1922; the remaining one thousand and five hundred (P1,500) to be
paid two years from the date of the execution of this note. San Enrique, Occ.
Negros, P. I., Jan. 21, 1922.
Subsequently, Lorenzo M. Quitco married the defendant Conchita McLachlin,
with whom he had four children, who are the other defendants. On March 9,
1930, Lorenzo M. Quitco died (Exhibit 5), and, still later, that is, on December 15,
1932, his father Eusebio Quitco also died, and as the latter left real and personal
properties upon his death, administration proceedings of said properties were
instituted in this court, the said case being known as the "Intestate of the
deceased Eusebio Quitco," civil case No. 6153 of this court.
Upon the institution of the intestate of the deceased Eusebio Quitco and the
appointment of the committee on claims and appraisal, the plaintiff Socorro
Ledesma, on August 26, 1935, filed before said committee the aforequoted
promissory note for payment, and the commissioners, upon receipt of said
promissory note, instead of passing upon it, elevated the same to this court en
consulta (Exhibit F), and as the Honorable Jose Lopez Vito, presiding over the First
Branch, returned said consulta and refrained from giving his opinion thereon
(Exhibit C), the aforesaid commissioners on claims and appraisal, alleging lack of
jurisdiction to pass upon the claim, denied he same (Exhibit H).

On
November 14, 1933 (Exhibit I), the court issued an order of declaration
of heirs in the intestate of the deceased Eusebio Quitco, and as Ana Quitco
Ledesma was not included among the declared heirs, Socorro Ledesma, as
mother of Ana Quitco Ledesma, asked for the reconsideration of said order, a
petition which the court denied. From the order denying the said petition no
appeal was taken, and in lieu thereof there was filed the complaint which gives
rise to this case.
The first question to be decided in this appeal, raised in the first assignment of alleged
error, is whether or not the action to recover the sum of P1,500, representing the last
installment for the payment of the promissory note Exhibit C, has prescribed.
According to the promissory note Exhibit C, executed by the deceased Lorenzo M.
Quitco, on January 21, 1922, the last installment of P1,500 should be paid two years from
the date of the execution of said promissory note, that is, on January 21, 1924. The
complaint in the present case was filed on June 26, 1934, that is, more than ten years
after he expiration of the said period. The fact that the plaintiff Socorro Ledesma filed
her claim, on August 26, 1933, with the committee on claims and appraisal appointed
in the intestate of Eusebio Quitco, does not suspend the running of the prescriptive
period of the judicial action for the recovery of said debt, because the claim for the
unpaid balance of the amount of the promissory note should no have been presented
in the intestate of Eusebio Quitco, the said deceased not being the one who executed
the same, but in the intestate of Lorenzo M. Quitco, which should have been instituted
by the said Socorro Ledesma as provided in section 642 of the Code of Civil Procedure,
authorizing a creditor to institute said case through the appointment of an administrator
for the purpose of collecting his credit. More than ten years having thus elapsed from
the expiration of the period for the payment of said debt of P1,500, the action for its
recovery has prescribed under section 43, No. 1, of the Code of Civil Procedure.
The first assignment of alleged error is, therefore, well-founded.
As to the second assignment of alleged error, consisting in that the trial court erred in
holding that the properties inherited by the defendants from their deceased
grandfather by representation are subject to the payment of debts and obligations of
their deceased father, who died without leaving any property, while it is true that under
the provisions of articles 924 to 927 of the Civil Code, a children presents his father or
mother who died before him in the properties of his grandfather or grandmother, this
right of representation does not make the said child answerable for the obligations
contracted by his deceased father or mother, because, as may be seen from the
provisions of the Code of Civil Procedure referring to partition of inheritances, the
inheritance is received with the benefit of inventory, that is to say, the heirs only answer
with the properties received from their predecessor. The herein defendants, as heirs of
Eusebio Quitco, in representation of their father Lorenzo M. Quitco, are not bound to
pay the indebtedness of their said father from whom they did not inherit anything.
The second assignment of alleged error is also well-founded.

Being a mere sequel of the first two assignments of alleged errors, the third assignment
of error is also well-founded.
For the foregoing considerations, we are of the opinion and so hold: (1) That the filing of
a claim before the committee on claims and appraisal, appointed in the intestate of
the father, for a monetary obligation contracted by a son who died before him, does
not suspend the prescriptive period of the judicial action for the recovery of said
indebtedness; (2) that the claim for the payment of an indebtedness contracted by a
deceased person cannot be filed for its collection before the committee on claims and
appraisal, appointed in the intestate of his father, and the propertiesinherited from the
latter by the children of said deceased do not answer for the payment of the
indebtedness contracted during the lifetime of said person.
Wherefore, the appealed judgment is reversed, and the defendants are absolved from
the complaint, with the costs to the appellees. So ordered.
Avancea, C.J., Imperial, Diaz, Laurel and Concepcion, JJ., concur
G.R. No. L-4963

January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR
NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of five (5) parcels of land
situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson
against Maria del Rosario and her four children named Concepcion, Conrado,
Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the
Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the
lands involved in this litigation. Faustino Nebreda left no other heir except his widow
Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his
common-law wife Maria del Rosario took possession illegally of said lands thus depriving
her of their possession and enjoyment.
Defendants in their answer set up as special defense that on February 21, 1931, Maria
Uson and her husband, the late Faustino Nebreda, executed a public document
whereby they agreed to separate as husband and wife and, in consideration of their
separation, Maria Uson was given a parcel of land by way of alimony and in return she

renounced her right to inherit any other property that may be left by her husband upon
his death (Exhibit 1).
After trial, at which both parties presented their respective evidence, the court
rendered decision ordering the defendants to restore to the plaintiff the ownership and
possession of the lands in dispute without special pronouncement as to costs.
Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino
Nebreda, former owner of the five parcels of lands litigated in the present case. There is
likewise no dispute that Maria del Rosario, one of the defendants-appellants, was
merely a common-law wife of the late Faustino Nebreda with whom she had four
illegitimate children, her now co-defendants. It likewise appears that Faustino Nebreda
died in 1945 much prior to the effectivity of the new Civil Code. With this background, it
is evident that when Faustino Nebreda died in 1945 the five parcels of land he was
seized of at the time passed from the moment of his death to his only heir, his widow
Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to
the heirs at the moment of the death of the ancestor as completely as if the ancestor
had executed and delivered to them a deed for the same before his death" (Ilustre vs.
Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of
Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right over the lands in
question because she expressly renounced to inherit any future property that her
husband may acquire and leave upon his death in the deed of separation they had
entered into on February 21, 1931, cannot be entertained for the simple reason that
future inheritance cannot be the subject of a contract nor can it be renounced (1
Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and
Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants are
illegitimate children of the late Faustino Nebreda and under the old Civil Code are not
entitled to any successional rights, however, under the new Civil Code which became
in force in June, 1950, they are given the status and rights of natural children and are
entitled to the successional rights which the law accords to the latter (article 2264 and
article 287, new Civil Code), and because these successional rights were declared for
the first time in the new code, they shall be given retroactive effect even though the
event which gave rise to them may have occurred under the prior legislation (Article
2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides indeed that rights
which are declared for the first time shall have retroactive effect even though the
event which gave rise to them may have occurred under the former legislation, but this
is so only when the new rights do not prejudice any vested or acquired right of the
same origin. Thus, said article provides that "if a right should be declared for the first time
in this Code, it shall be effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under the prior legislation,

provided said new right does not prejudice or impair any vested or acquired right, of
the same origin." As already stated in the early part of this decision, the right of
ownership of Maria Uson over the lands in question became vested in 1945 upon the
death of her late husband and this is so because of the imperative provision of the law
which commands that the rights to succession are transmitted from the moment of
death (Article 657, old Civil Code). The new right recognized by the new Civil Code in
favor of the illegitimate children of the deceased cannot, therefore, be asserted to the
impairment of the vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in state, in
a gesture of pity or compassion, agreed to assign the lands in question to the minor
children for the reason that they were acquired while the deceased was living with their
mother and Maria Uson wanted to assuage somewhat the wrong she has done to
them, this much can be said; apart from the fact that this claim is disputed, we are of
the opinion that said assignment, if any, partakes of the nature of a donation of real
property, inasmuch as it involves no material consideration, and in order that it may be
valid it shall be made in a public document and must be accepted either in the same
document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential
formality has not been followed, it results that the alleged assignment or donation has
no valid effect.
WHEREFORE, the decision appealed from is affirmed, without costs
G.R. No. L-48372

July 24, 1942

GENEROSA TEVES DE JAKOSALEM, plaintiff-appellant,

vs.
NICOLASA RAFOLS, ET ALS., defendants-appellees.
Tomas Alonso and Silvano Jakosalem for appellant.
Nicolasa Rafols for appellees.
MORAN, J.:
The land in question described in the appealed in the decision originally belonged to
Juan Melgar. The latter died at the judicial administration of his estate was commenced
in 1915 and came to a close on December 2, 1924, only. During the pendency of the
said administration, that is, on July 5, 1917, Susana Melgar, daughter of the deceased
Juan Melgar, sold the land with the right of repurchase to Pedro Cui, subject to the
stipulation that during the period for the repurchase she would continue in possession of
the land as lessee of the purchaser. On December 12, 1920, the partition of the estate
left by the deceased Juan Melgar was made, and the land in question was
adjudicated to Susana Melgar. In 1921, she conveyed, in payment of professional fees,
one-half of the land in favor of the defendant-appellee Nicolasa Rafols, who, entered
upon the portion thus conveyed and has been in possession thereof up to the present.
On July 23, 1921, Pedro Cui brought an action to recover said half of the land from
Nicolas Rafols and the other half from the other defendants, and while that case was

pending, or about August 4, 1925, Pedro Cui donated the whole land in question to
Generosa Teves, the herein plaintiff-appellant. After trial, the lower court rendered a
decision absolving Nicolas Rafols as to the one-half of the land conveyed to him by
Susana Melgar, and declaring the plaintiff owner of the other half but express
acknowlegment of the other defendants. The plaintiff appealed from that part of the
judgment which is favorable to Nicolas Rafols.
The lower court absolved Nicolas Rafols upon the theory that Susana Melgar could not
have anything to Pedro Cui because the a land was then in custodia legis, that is,
under judicial administration. This is error. That the land could not ordinarily be levied
upon while in custodia legis, does not mean that one of the heirs may not sell the right,
interest or participation which he has or might have in the lands under administration.
The ordinary execution of property in custodia legis is prohibited in order to avoid
interference with the possession by the court. But the sale made by an heir of his share
in an inheritance, subject to the result of the pending administration, in no wise stands in
the way of such administration.
Article 440 of the Civil Code provides that "the possession of hereditary property is
deemed to be transmitted to the heir without interruption from the instant of the death
of the decedent, in case the inheritance be accepted." And Manresa with reason
states upon the death of a person, each of his heirs "becomes the undivided owner of
the whole estate left with respect to the part or portion which might be adjudicated to
him, a community of ownership being thus formed among the coowners of the estate
while it remains undivided." (3 Manresa 357; Alcala vs. Alcala, 35 Phil. 679.) And
according to article 399 of the Civil Code, every part owner may assign or mortgage his
part in the common property, and the effect of such assignment or mortgage shall be
limited to the portion which may be alloted him in the partition upon the dissolution of
the community. Hence, in the case ofRamirez vs, Bautista, 14 Phil. 528, where some of
the heirs, without the concurrence of the others, sold a property left by their deceased
father, this Court, speaking thru its then Chief Justice Cayetano Arellano, said that the
sale was valid, but that effect thereof was limited to the share which may be allotted to
the vendors upon the partition of the estate.
It results therefore that the sale made by Susana Melgar in favor of Pedro Cui was valid,
but it would be effective only as to the portion to be adjudicated to the vendor upon
the partition of the property left by her deceased father Juan Melgar. And as on
December 12, 1920, upon the partition of said property, the land in question was
adjudicated to Susana Melgar, the sale of the whole land which the latter made in
favor of Pedro Cui was entirely confirmed.
Upon the confirmation of the sale of December 12, 1920 in favor of Pedro Cui, the
conveyance by Susana Melgar in favor of Nicolasa Rafols in 1921 could no longer be
done. And even in the case of a double sale, where neither of the purchasers has
registered the sale, the first in possession namely, Pedro Cui, should be referred. When
the sale made in the latter's favor was confirmed on December 12, 1920, Susana
Melgar was in possession of the land as lessee, and this possession should be considered

as that of Pedro Cui. The possession of Nicolas Rafols commenced in 1921 only,
wherefore, it is subsequent to that of Pedro Cui.
Nicolasa Rafols may not allege prescription of action, for Pedro Cui filed the first
complaint in 1921, or the year following the confirmation of the sale in his favor. And as
Nicolas Rafols deprived Pedro Cui of the possession and the enjoyment of one-half of
the land since 1921 to the present, it is only just that he should pay an indemnity
therefor. Six per cent of P1,500, which is the price of one-half of the land, may be
considered as the reasonable amount of this indemnity.
Wherefore, the appealed decision is reversed, and Nicolas Rafols is sentenced to
deliver to the plaintiff Generosa Teves de Jakosalem, one-half of the land conveyed to
him by Susana Melgar, and to pay by way of damages the sum of P90 a year from the
filing of the complaint that is, from July 23, 1921, until the delivery of the land, with the
cost of both instances against him. So ordered.
G.R. No. L-16544

March 30, 1921

LEONARDO OSORIO, plaintiff-appellee,

vs.
TOMASA OSORIO, administratrix of the estate of Petrona Reyes, and THE YNCHAUSTI
STEAMSHIP CO.,defendants-appellants.
Fernandez and Ansaldo for appellants.
Carlos Ledesma for appellee.
VILLAMOR, J.:
The plaintiff seeks to recover 610 shares of stock of "Ynchausti Steamship Co." and the
dividends corresponding to them, which were included in the inventory of the
properties of the deceased Da. Maria Petrona Reyes, whose estate is administered by
the defendant. The facts of this case are:
D. Antonio Osorio had formed with Ynchausti & Co., a joint account association for the
exploitation of the shipping business, he being the owner of the one-third of the
company's capital. This capital amounted to P500,000, of which P166,666.66, that is,
one-third belonged to D. Antonio Osorio. Upon his death, his heirs agreed to authorize
the defendant Da. Tomasa Osorio, then administratrix of the estate of the deceased, to
present a project of partition, and said administratix inserted in the project with the
consent of all the heirs, among the properties which belonged to the widow Da.
Petrona Reyes, the sum of P94,000 as her part in the "share of the estate in the shipping
business of Ynchausti & Co.," that is, a little over P166,666.66, which was the share in said
business of the deceased Osorio during his lifetime. The project of partition was
approved on May 10, 1915, with the consent of the heirs, by the Court of First Instance
of Cavite, which had cognizance of the testamentary and administration proceedings
of the state of the deceased Osorio.

On February 28, 1914, the widow of D. Antonio Osorio, Da. Petrona Reyes, now also
deceased, executed before the notary D. Florencio Gonzales Diez a document of gift
in favor of her son D. Leonardo Osorio, the plaintiff, giving to him one-half of her share in
the one-third part which belonged to her husband in the shipping business of Ynchausti
& Co., a donation which was duly accepted by the donee D. Leonardo Osorio, who
signed said document with the plaintiff. On that date, February 28, 1914, the estate of
D. Antonio Osorio was not yet distributed among his heirs, and the donor Da. Petrona
Reyes in order to correct the error in said document, wherein it was stated that said half
was adjudicated to her as part of her conjugal property, when the partition was yet
being effected, executed another document dated July 3, 1915, maintaining said
donation in effect in the sense that she ceded and donated to her son D. Leonardo
Osorio, for the same reasons stated in the document of February 28, 1914, al interest or
participation in said shipping business of Ynchausti & Co., which was adjudicated to her
in the division of the estate of D. Antonio Osorio, which division was approved by the
Court of First Instance of Cavite on May 10, 1915.
After the death of D. Antonio Osorio and before the distribution of the estate, Ynchausti
& Co. purchased the steamer Governor Forbes and recognized the heirs of D. Antonio
Osorio as having an interest to the extent of one-third in the ownership and business of
said steamer. It was agreed upon by all the interested parties that the share of Da.
Petrona Reyes, widow of Osorio, in the vessel Governor Forbes, at the time of the
incorporation of "The Ynchausti Steamship Co." was P61,000, equivalent to 610 shares of
stock of said corporation. Said sum was deposited with the Steamship Co. until the final
settlement of the question that had arisen between the heirs of Da. Petrona Reyes as to
the ownership thereof for, while the plaintiff alleges that, by virtue of the donation
made in his favor by Da. Petrona Reyes, he is the owner of said shares and of their value
which is P61,000; the defendant on the other hand contends that said shares are not
included in the donation in question and belong to the heirs of Da. Petrona Reyes. Such
as the facts which gave rise to this litigation.
The trial court rendered judgment in the case, declaring that the 610 shares of stock in
dispute and their dividends belong to the plaintiff, and ordered the defendant Da.
Tomasa Osorio, administratrix of the estate of Da. Petrona Reyes, to exclude them from
the inventory and her accounts, and the other defendant "The Ynchausti Steamship
Co." to inscribe them in the name of the plaintiff D. Leonardo Osorio, delivering to him
the dividends corresponding thereto, and denied the counterclaim for the sum of
P45,000, on the ground that said sum represents the dividends corresponding to the
P94,000 adjudicated to Da. Petrona Reyes, in the partition of the estate of D. Antonio
Osorio, and donated by her to the defendant in the counterclaim.
The case having been appealed to this court, counsel for the defendant and
appellant, in summing up their arguments in support of the errors assigned in their brief,
maintain the two following propositions:
1. The donation made by Da. Petrona Reyes in favor of the plaintiff was of no
value and effect; and

2. That, supposing said donation valid, the 610 shares of stock, the value of which
is P61,000, cannot be considered as included among them.
The document of donation dated February 28, 1914, attacked by the appellant, is as
follows:
Know all me by these presents: That I, Petrona Reyes, of age, widow of D.
Antonio Osorio and resident of the Province of Cavite, Philippine Islands, being in
possession of all my senses, freely and voluntarily state:
1. That my husband, the deceased D. Antonio Osorio, was a shareholder to the
extent of one-third in the joint account association "Ynchausti & Co." of this
place, which is engaged in the business of buying vessels and in the exploitation
of six steam vessels acquired from the Compaia Maritima, the article of
association of said joint account association having been executed in the city of
Manila on July 3, 1906, before the notary public D. Florencio Gonzales Diez.
2. That upon the death of my husband D. Antonio Osorio and upon the partition
of his estate, there was adjudicated to me as conjugal property, one-half of said
one-third part in the business referred to, the other half thereof going to our four
surviving children, such being the present condition of our interest in said
company.
3. That in consideration of the continuous services and attention received by me
from my son D. Leonardo Osorio, of age, married and a resident of Cavite also,
and because of the affection he has always shown and still shows me, as well as
because of the number of children that he has, I make a free and expressed
donation to my said son D. Leonardo Osorio of all my interest and participation in
said company "Ynchausti and Co." which is neither transferred nor burdened in
any manner whatever.
4. I also declare that the present donation does not in any way prejudice the
right which may accrue to my other children with respect to inheriting my
property and that therefore I can effect this donation, with all liberty, as I reserve
for myself what is sufficient for me to live on in the manner which corresponds to
my social position and needs.
5. In turn, I, Leonardo Osorio, of age, married and a resident of the Province of
Cavite, state my conformity and acceptance of said donation which my dear
mother makes to me, for which I am greatly thankful to her.
In witness whereof we sign the present document in triplicate at Manila,
Philippine Islands, this twenty-eighth day of February, nineteen hundred and
fourteen.

(Sgd.) PETRONA REYES.

LEONARDO OSORIO.
Signed in the presence of:
(Sgd.) EUSEBIO ALBA.
SALVADOR BARRIOS.
Acknowledged before the notary public D. Florencio Gonzales Diez on February 28,
1914.
The document rectifying the ratifying the preceding is literally as follows:
Know all men by these presents: That I, Petrona Reyes, of age, widow of D. Antonio
Osorio and resident of the Province of Cavite, Philippine Islands, being in the full
possession of my senses, freely and voluntarily declare:
1. That on February 28, 1914, before the notary public of Manila, D. Florencio
Gonzales Diez, I executed a document of donation in favor of my son D.
Leonardo Osorio, of one-half of the one-third part which my deceased husband
had in certain shipping business of the association "Ynchausti & Co."
2. That in said document I stated, through error, that said half of one-third part of
the business referred to was adjudicated to me as my part of the conjugal
property in the partition of the properties left by my deceased husband, when
the truth was that said partition had not yet been put in proper form or finished.
3. That in order to correct said error, I so state, declaring however in any event
that I make said donation subsisting in the sense that I cede and donate to my
side son D. Leonardo Osorio, in consideration of the same causes mentioned in
said document of February 28, 1914, all interest or share in said shipping business
of Ynchausti & Co. which was adjudicated to me in the partition of the estate of
my deceased husband, and approved by the Court of First Instance of Cavite,
on May 10, 1915.
In witness whereof I sign the present document in triplicate of Cavite on July 3,
1915.
(Sgd. by):
PETRONA REYES.
Signed in the presence of:
(Sgd.) CARLOS LEDESMA.
ISAURO GABALDON.

In support of the first proposition, the appellant invokes as the legal provision violated,
article 635 of the Civil Code, which says:
A donation can not include future property.
By future property is understood that of which the donor can not dispose at the
time of making the donation.
Commenting on article 635 of the Civil Code, Manresa says, among other things:
To close these fundamental ideas which the spirit of articles 634 and 635
develops we must fix our attention to the definition which the Code gives of
future properties. They are those of which the donor cannot dispose at the time
of making the donation. This definition in reality includes all properties which
belong to others at the time of the donation, although they may or may not later
belong to the donor, thus connecting two ideas which, although lacking
apparently in relation, are merged in reality in the subject which we examine
and which gives assurance to their application. Article 635 refers to the
properties of third persons but it may be said that id does so in relation to a time
to come; there can be properties which may latter belong to the donor; but
these properties cannot be donated, because they are not at present his
properties, because he cannot dispose of them at the moment of making the
donation. The usufructuary for life or for a determined number of years of a
vineyard may donate said usufruct to the whole extent that it belongs to him but
never the property itself. The bare owner of said vineyard may donate his right of
course; but he may also donate the usufruct which corresponds to the time that
it will go back to him, because the case refers to a vested right of which he may
dispose at the time of the donation.
It is alleged that the donation made by Da. Petrona Reyes is void because she donated
on February 28, 1914, a future property, such as the share in the business of the
deceased Osorio, which was adjudicated to her on May 10, 1915, and because in 1914
she did not have the right to all or part of the share which her deceased husband had
in the shipping business of Ynchausti & Co.
Carefully examining said article 635 of the Civil Code, in relation to the worthy opinion
of the commentator Manresa, we believe that the future properties, the donation of
which is prohibited by said article, are those belonging to other, which, as such, cannot
be the object of the disposal by the donor; but the properties of an existing inheritance
as those of the case at bar, cannot be considered as another's property with relation to
the heirs who through a fiction of law continue the personality of the owner. Nor do
they have the character of future property because the died before 1912, his heirs
acquired a right to succeed him from the moment of his death, because of the
principle announced in article 657 and applied by article 661 of the Civil Code,
according to which the heirs succeed the deceased by the mere fact of his death.
More of less time may elapse before the heirs enter into the possession of the hereditary
property, but this is not an obstacle, for the acquisition of said property retroacts in any

event to the moment of death, according to article 989 of the Civil Code. The right is
acquired although subject to the adjudication of the corresponding hereditary portion.
Furthermore the Civil Code does not prohibit absolutely that future inheritance should
be the object of agreement, for there are certain cases (arts. 177, 827, 831, and 1331) in
which agreements may be made as to them, beside that indicated in article 1271, and
it may be deduced that an inheritance already existing, which is no longer future from
the moment of death of the predecessor, may legally be the object of contract. A
donation being of a contractual nature, inasmuch as for its efficacy the concurrence of
two wills is required, that of the donor and the donee, we believe that which may be
the object of contract may also be the object of a donation. Ubi eadem est ratio, ibi
est eadem legis dispositio. We conclude that the donor Da. Petrona Reyes, on February
28, 1912, and could legally dispose of her right through an act of liberality, as she had
done.
With respect to the point that Da. Petrona Reyes did not have in 1914 any right to all or
part of the share of her deceased husband in the shipping business of Ynchausti and
Co., it must be observed that in the project of partition of the property of D. Antonio
Osorio the following appears:
The widow of the testator, Maria Petrona Reyes, her children Feliza, Tomasa, and
Leonardo and her granddaugther Soledad Encarnacion Osorio y San Agustin
are at present all living and are the only heirs of the deceased.
The testator declares that all property left by him was acquired during his
marriage with Petrona Reyes.
The testator institutes as his only and universal heirs his said children and
granddaugther, designates the parts which each of them must receive as
legitime, betterment, and legacy, leaves to the disposition of his widow and
amount equivalent to that set aside by him in payment of one-half part of the
conjugal property and orders that the remainder should be equally distributed
among his heirs.
We do not have before us the will of D. Antonio Osorio but supposing that he had left
no property but the share which he had in the shipping business of Ynchausti & Co.,
can it be denied that the donor by law had the right to half of said share as her part of
the conjugal property? Clearly not. The defendant in her answer says:
That Da. Maria Petrona Reyes did not donate to the plaintiff more that her share
in the shipping business of the firm Ynchausti & Co. which was adjudicated to her
in the partition of the property of D. Antonio Osorio and that said share amounts
to P94,000.
This admission of the defendant is conclusive, and makes it unnecessary for us to enter
into another discussion in order to deduce that Da. Petrona Reyes had in 1914 a right to

a certain part of the interest of the deceased Osorio in the shipping business of the firm
Ynchausti & Co., and could donate it, as she did, to her son D. Leonardo Osorio.
The allegation that the document of July 3, 1915, is void, because it does not show the
acceptance of the donee, is of no importance, because of the conclusion we have
reached in discussing the document of donation of February 28, 1914. In the second
document, the donor only tried to correct what she believed to be an error in the first,
wherein it is stated that in the partition of the property of her husband there was
adjudicated to her the part of the interest in the shipping business of Ynchausti & Co.
which she donated to her son Leonardo, when in fact said partition was yet pending.
After its approval by the Court of First Instance of Cavite, the donor executed the
document of 1915, ratifying and correcting the document of donation. She did not
make a new donation. She executed a personal act which did not require the
concurrence of the donee. It is the duty of the donee, in order that the donation may
produce legal effect, to accept to the donation and notify the donor thereof. The
acceptance is necessary because nobody is obliged to receive a benefit against his
will. And all this was complied with in the document of 1914. The wills of the donor and
of the donee having concurred, the donation, as a mode of transferring ownership,
becomes perfect, according to article 623 of the Civil Code.
We will not pass to the second proposition of the appellant, that is, that the 610 shares,
which are the subject matter of the suit, cannot be considered as included in the
donation made by Da. Petrona Reyes in favor of the plaintiff, supposing that said
donation was valied. The reasons alleged by the appellant are: (1) That the steam
vessel Governor Forbes was purchased after the death of D. Antonio Osorio, with
money borrowed and furnished by the heirs individually and not by the estate, and (2)
that the plaintiff appellee has recognized that the capital used in the steamer Forbes is
distinct from the money used in the purchase of other vessels in which the deceased
Osorio had an interest.
The question whether the streamer Governor Forbes was or was not purchased with
money furnished by Ynchausti and the heirs of Osorio, indepedently of that former
partnership in which the deceased Osorio had an interest, is one of the fact and must
be resolved in view of the evidence adduced at the trial.
D. Julio Gonzales, secretary and accountant of the firm Ynchausti, witness for the
defendant, states that theForbes was purchased with money which the shipping
business of Unchaisti & Co. had. The appellant herself admits that his vessel took part in
the general shipping business of Ynchausti & Co. for no new partnership was constituted
for the purchase thereof, and, after its acquisition the Ynchausti firm accounted to the
estate of D. Antonio Osorio for the profits obtained and the dividends to be distributed
and no separate account was made of the earnings of the vessel, but only a general
account, including the profits obtained in the shipping business, in which the Governor
Forbes was but one of several vessels. D. Joaquin Elizalde, manager of the firm
Ynchausti & Co., by agreement of the parties and with the approval of the court, made
a deposition before the notary public D. Florencio Gonzales Diez, stating that when the
steamer Forbes was acquired in 1912, the Ynchausti firm did not bring in any new

capital, but obtained money for its purchase by mortgaging the vessel itself and other
vesseles of the company; and that the heirs of D. Antonio Osorio did not bring in any
new capital for the purchase of the vessel, but signed jointly with Ynchausti & Co. with
the others, except Da. Soledad Osorio, the guaranty which the bank required.
In our opinion the evidence shows conclusively that the vessel Governor Forbes forms
part of the shipping business of Ynchausti & Co. in which D. Antonio Osorio and his
estate had an interest. It is no argument against this conclusion that the heirs of Osorio
signed with Ynchausti & Co. the guaranty required by the bank where the money used
in the purchase of the Forbes was taken: (1) Because the guaranty is for the purpose
only for securing the payment of the amount indebted and not for excluding the estate
of Osorio from the result of that banking operation; (2) because, besides said guaranty,
the other vessels of the joint account association of Osorio and Ynchausti & Co. were
mortgage; (3) because no new partnership was formed between Ynchausti & Co. and
the heirs of Osorio for the purchase of the vessel Forbes; and (4) because, when
Unchausti & Co. agreed with the heirs of Osorio in that his share in the
steamer Forbes was P108,333.33, this sum was distributed among said heirs, including
Da. Soledad Osorio who did not sign the guaranty, the accruing to each P11, 833.33
and to the widow Da. Petrona Reyes P61,000, which is the object of this suit.
All of the above shows that the estate of Osorio had a one-third part of the
steamer Forbes represented by the capital which was distributed among the heirs,
there accruing to the widow, by agreement of the interested parties, the sum of
P61,000. And this sum being part of the one-half of one-third of the shipping business of
Ynchausti & Co., which one-half part accrued to the widow in the distribution of the
properties of Osorio; and the widow Da. Petrona Reyes having disposed of this half,
donating it to her son D. Leonardo Osorio, it clearly results, in our opinion, that the sum
of 61,000, or the corresponding shares of the new corporation "The Ynchausti Steamship
Co." are included in said donation, and therefore belong to the plaintiff-appellee.
The other reason alleged by the appellant in support of her contention is that the
plaintiff has recognized in his letter addressed to the defendant corporation, and
inserted in the answer presented by the latter that the Forbeswas acquired with money
different from that of the joint account association theretofore mentioned. We have
carefully read the letter in question and what appears is that said plaintiff agreed that
the P61,000 should be deposited with Ynchausti & Co., as trustee, to be distributed with
its accumulated dividends, when the question between the heirs of Da. Petrona Reyes
had already been terminated, that is to say, according to the result of the present suit.
There is nothing in said letter which indicates how the Governor Forbes was acquired.
With respect to the counterclaim of P45,609,91, we are of the opinion that the evidence
justifies the conclusion of the trial court that they are the profits or dividends accruing to
the P94,000, which were adjudicated to the widow Da. Petrona Reyes in the distribution
of the estate of the deceased Osorio and which were donated by her to the plaintiff,
and as such profits they belong to the latter, upon the principle of law that ownership of
property gives right by accession to all that it produces, or is united or incorporated
thereto, naturally or artificially. (Art. 353 of the Civil Code.)

In view of what has been said, the judgment appealed from should be, as it is hereby,
affirmed, with costs against the appellant. So ordered.
G.R. No. L-23126

March 17, 1925

In the matter of intestate estate of the deceased Juana Servando.

JOSE P. TINSAY, administrator-appellee,
vs.
JOVITA YUSAY and PETRA YUSAY, heirs-appellants.
Block, Johnston and Greenbaum for appellants.
Clemente M. Zulueta for appellee.
OSTRAND, J.:
It appears from the record that one Juan Yusay died some time before the year 1909,
leaving a widow Juana Servando and five children, Candido, Numeriana, Jovito, Jovita
and Petra. As far as the record shows his estate consisted of his interest in a track of
land situated in the town of Iloilo, divided into two lots by Calle Aldeguer and which
was community property of his marriage to Juana Servando. In 1909 Jovito Yusay
purchased the interests of Candido and Numeriana in the land, thus acquiring a threefifths interest in the same.
Jovito Yusay appears to have died some time between the years 1909 and 1911,
leaving a widow, Perpetua Sian, and five minor children, Juana, Elena, Aurea, Elita and
Antonia Yusay. In 1911 Perpetua Sian for herself and in representation of her children
entered into an agreement in writing (Exhibit 1) with Jovita and Petra Yusay which
purported to provide for the partition of the land mentioned and whereby Perpetua
Sian and her children were to occupy the portion to the northeast of Calle Aldeguer
and Jovita and Petra were to have the portion or lot to the southwest of this street.
The document is very imperfectly drawn and is in some respects somewhat ambiguous
in its terms but it is, nevertheless, quite clear that in its final clause Jovita and Petra Yusay
expressly relinquish in favor of the children of Jovito Yusay any and all rights which they,
Jovita and Petra, might have in the land assigned to Perpetua Sian and her children in
the partition.
Subsequently a cadastral survey was made of the section of Iloilo in which the land in
question is situated. In this survey the portion alloted to Perpetua Sian and her children
was designated as lot No. 241, with a narrow strip set aside for the widening of Calle
Aldeguer and described as lot No. 713. The portion which under the partition of 1911 fell
to the share of Jovita and Petra Yusay was given the lot number 283; a narrow strip of
the same portion along Calle Aldeguer is numbered 744.
At the trial of the cadastral case lots Nos. 241 and 713 were claimed by Perpetua Sian
on behalf of her children and the lots were adjudicated to the latter without opposition.

Lots Nos. 283 and 744 were claimed by Jovita and Petra And adjudicated to them, also
without opposition.
Shortly thereafter, on August 10, 1915, Juana Servando filed a petition in the cadastral
case asking for the reopening of the case as to lots Nos. 241 and 713 on the ground
that she was the owner of a one-half interest in said lots, but that at the time of the trial
of the case Perpetua Sian had falsely lead her to believe that a claim had been
presented in her behalf for her interest in the land. The petition for reopening was
granted, the former judgment set aside and the two lots Nos. 241 and 713 were
thereupon decreed in favor of Juana Servando and the children of Jovito Yusay in the
proportions of an undivided half interest in favor of Juana Servando and the remaining
one-half interest in favor of the children of Perpetua Sian in equal shares, the court
holding in substance that Juana Servando not having been a party to the partition
made in 1911, her interests were not affected thereby. The case was appealed to this
court and the decision of the lower court affirmed.1
It may be noted that Juana laid no claim to lots Nos. 283 and 744 decreed in favor of
Jovita and Petra Yusay who therefore remained the registered owners of said lots.
On April 12, 1919, after the death of Juana Servando, the appellee Jose P. Tinsay was
appointed administrator of her estate. In July and October, 1922, Jovita and Petra
Yusay sold lot No. 283 to one Vicente Tad-Y for the sum of P20,000. On March 22, 1924,
the administrator of the estate of Juana Servando filed an amended inventory in which
the P20,000 received by Jovita and Petra from the sale of lot No. 283 was included
as bien colacionable. On the same day a scheme for the distribution of the estate was
submitted to the court in which the aforesaid P20,000 were brought into collation with
the result that the total value of the estate being only P28,900, according to inventory,
no further share in the estate was assigned to Jovita and Petra Yusay.
The scheme of partition was opposed by Jovita and Petra and the matter set down for
hearing, at which hearing the opponents introduced in evidence Exhibit A, a certificate
of the register of deeds of the Province of Iloilo showing that the deceased Juana
Servando was the registered owner of a half interest in lots Nos. 241 and 713 and that
Jovita and Petra Yusay were the exclusive registered owners of lots Nos. 283 and 744.
The administrator presented in evidence Exhibits 1 to 6, inclusive. Exhibit 1 is the
document of partition between Perpetua Sian and Jovita and Petra Yusay executed in
1911; Exhibits 2 and 3 are deeds executed by Numeriana and Candido Yusay
transferring their interests in all of the lots above-mentioned to Jovito Yusay; Exhibits 4
and 5 are the deeds for lot No. 283 executed by Jovita and Petra Yusay in favor of
Vicente Tad-Y; and Exhibit 6 evidences a lease from Jovita Yusay of one-half of lot No.
283 in favor of Yap Angching and dated July 29, 1911. The admission of these exhibits
was objected to by opponents and the objections were sustained by the court, to
which ruling counsel for the administrator excepted. The result of the exclusion of the
exhibits is that there in reality is no evidence for the appellee properly before the court;
the introductory statement made by counsel in offering the exhibits and in which he
briefly stated their support, is no evidence. In making the foregoing statement of facts

we have, however, drawn freely upon all of the exhibits in order to bring the issues
involved in the case into clear relief.
The court approved the scheme of partition and declared the proceeds of the sale of
lots Nos. 283 and 744 "fictitiously collationable" and held that this being in excess of their
share of the inheritance, Jovita and Petra Yusay could claim no further participation in
the other property described in the inventory and in the scheme of partition. In the
same order the court declared Exhibits 4 and 5 admissible notwithstanding the fact that
they had been ruled out at the hearing, but maintained its original ruling in regard to
Exhibits 1, 2, 3 and 6. From this order Jovita and Petra Yusay appeal.
The appellants make seven assignments of error and in their brief the discussion has
taken a rather wide range. The matter in controversy may, however, be reduced to
very simple terms. It is, of course, clear that the court below erred in taking into
consideration in its decision evidence which it had ruled out at the trial of the case; if,
after the close of the trial, the court upon more mature reflection arrived at the
conclusion that some of its rulings were erroneous, it should have reopened the case
before reversing them. We are also of the opinion that it was error to exclude Exhibits 1,
2 and 3. Exhibit 6 may be of some value to show the interpretation given Exhibit 1 by the
parties and might properly have been admitted in evidence.
We also agree with counsel for the appellants that the case involves no question of this
kind of colacion provided for in articles 1035-1050 of the Civil Code, nor are we here
dealing with advancements to lineal heirs under section 760 of the Code of Civil
Procedure in force at the time of the execution of Exhibit 1. As far as we can see, the
appellee must rest his case upon entirely different principles.
The decision appealed from being based on evidence not properly before the trial
court, must be reversed, but inasmuch as the errors committed by that court are of
such a character as to have worked what amounts to a mistrial, it will be necessary to
remand the case for a new trial.
For the guidance of the court as well as of counsel at this new trial, we shall briefly state
our view of the principles upon which, in our opinion, the controversy must be
determined in the hope of saving further appeals.
Juana Servando not being a party to the partition agreement Exhibit 1, the agreement
standing alone was, of course, ineffective as against her. The attempt to partition her
land among her heirs, constituting a partition of a future inheritance was invalid under
the second paragraph of article 1271 of the Civil Code and for the same reason the
renunciation of all interest in the land which now constitutes lots Nos. 241 and 713 made
by the appellants in favor of the children of Jovito Yusay would likewise be of no
binding force as to the undivided portion which belonged to Juana Servando. But if the
parties entered into the partition agreement in good faith and treated all of the land as
a present inheritance, and if the appellants on the strength of the agreement obtained
their Torrens title to the land alloted to them therein, and if Perpetua Sian in reliance on
the appellants' renunciation of all interest claimed by her on behalf of her children in

the cadastral case refrained from presenting any opposition to the appellants' claim to
the entire fee in the land assigned to them in the partition agreement and if the
appellants after the death of Juana Servando continued to enjoy the benefits of the
agreement refusing to compensate the heirs of Jovito Yusay for the latter's loss of their
interest in lots Nos. 283 and 744 through the registration of the lots in the name of the
appellants and the subsequent alienation of the same to innocent third parties, said
appellants are now estopped from repudiating the partition agreement of 1911 and
from claiming any further interest in lots Nos. 241 and 713. There is, however, no reason
why they should not be allowed to share in the distribution of the other property left by
Juana Servando.
We may say further that if a case of estoppel should not be established, the appellants
might still, under article 1303 in relation with article 1073 of the Civil Code, be compelled
to restore to the estate of Juana Servando one- half of the amount received by them
from the sale of lots Nos. 283 and 744, unless it is shown that Juana's interest in the lot
was transferred to them either by sale or by valid donation. The registration of land does
not necessarily extinguish obligations of that character.
For the reasons stated, the order appealed from is reversed and the case remanded to
the court below for a new trial upon the issues herein suggested. No costs in this
instance. So ordered.
G.R. No. L-43082

June 18, 1937

PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiffappellant,

vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-appellant.
Office of the Solicitor-General Hilado for defendant-appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate
of Thomas Hanley, deceased, brought this action in the Court of First Instance of
Zamboanga against the defendant, Juan Posadas, Jr., then the Collector of Internal
Revenue, for the refund of the amount of P2,052.74, paid by the plaintiff as inheritance
tax on the estate of the deceased, and for the collection of interst thereon at the rate
of 6 per cent per annum, computed from September 15, 1932, the date when the
aforesaid tax was [paid under protest. The defendant set up a counterclaim for
P1,191.27 alleged to be interest due on the tax in question and which was not included
in the original assessment. From the decision of the Court of First Instance of
Zamboanga dismissing both the plaintiff's complaint and the defendant's counterclaim,
both parties appealed to this court.

It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga,
leaving a will (Exhibit 5) and considerable amount of real and personal properties. On
june 14, 1922, proceedings for the probate of his will and the settlement and distribution
of his estate were begun in the Court of First Instance of Zamboanga. The will was
admitted to probate. Said will provides, among other things, as follows:
4. I direct that any money left by me be given to my nephew Matthew Hanley.
5. I direct that all real estate owned by me at the time of my death be not sold
or otherwise disposed of for a period of ten (10) years after my death, and that
the same be handled and managed by the executors, and proceeds thereof to
be given to my nephew, Matthew Hanley, at Castlemore, Ballaghaderine,
County of Rosecommon, Ireland, and that he be directed that the same be
used only for the education of my brother's children and their descendants.
6. I direct that ten (10) years after my death my property be given to the above
mentioned Matthew Hanley to be disposed of in the way he thinks most
advantageous.
xxx

xxx

xxx

8. I state at this time I have one brother living, named Malachi Hanley, and that
my nephew, Matthew Hanley, is a son of my said brother, Malachi Hanley.
The Court of First Instance of Zamboanga considered it proper for the best interests of
ther estate to appoint a trustee to administer the real properties which, under the will,
were to pass to Matthew Hanley ten years after the two executors named in the will,
was, on March 8, 1924, appointed trustee. Moore took his oath of office and gave
bond on March 10, 1924. He acted as trustee until February 29, 1932, when he resigned
and the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant Collector of Internal
Revenue, alleging that the estate left by the deceased at the time of his death
consisted of realty valued at P27,920 and personalty valued at P1,465, and allowing a
deduction of P480.81, assessed against the estate an inheritance tax in the amount of
P1,434.24 which, together with the penalties for deliquency in payment consisting of a 1
per cent monthly interest from July 1, 1931 to the date of payment and a surcharge of
25 per cent on the tax, amounted to P2,052.74. On March 15, 1932, the defendant filed
a motion in the testamentary proceedings pending before the Court of First Instance of
Zamboanga (Special proceedings No. 302) praying that the trustee, plaintiff herein, be
ordered to pay to the Government the said sum of P2,052.74. The motion was granted.
On September 15, 1932, the plaintiff paid said amount under protest, notifying the
defendant at the same time that unless the amount was promptly refunded suit would
be brought for its recovery. The defendant overruled the plaintiff's protest and refused
to refund the said amount hausted, plaintiff went to court with the result herein above
indicated.

In his appeal, plaintiff contends that the lower court erred:

I. In holding that the real property of Thomas Hanley, deceased, passed to his
instituted heir, Matthew Hanley, from the moment of the death of the former,
and that from the time, the latter became the owner thereof.
II. In holding, in effect, that there was deliquency in the payment of inheritance
tax due on the estate of said deceased.
III. In holding that the inheritance tax in question be based upon the value of the
estate upon the death of the testator, and not, as it should have been held,
upon the value thereof at the expiration of the period of ten years after which,
according to the testator's will, the property could be and was to be delivered to
the instituted heir.
IV. In not allowing as lawful deductions, in the determination of the net amount
of the estate subject to said tax, the amounts allowed by the court as
compensation to the "trustees" and paid to them from the decedent's estate.
V. In not rendering judgment in favor of the plaintiff and in denying his motion for
new trial.
The defendant-appellant contradicts the theories of the plaintiff and assigns the
following error besides:
The lower court erred in not ordering the plaintiff to pay to the defendant the
sum of P1,191.27, representing part of the interest at the rate of 1 per cent per
month from April 10, 1924, to June 30, 1931, which the plaintiff had failed to pay
on the inheritance tax assessed by the defendant against the estate of Thomas
Hanley.
The following are the principal questions to be decided by this court in this appeal: (a)
When does the inheritance tax accrue and when must it be satisfied? (b) Should the
inheritance tax be computed on the basis of the value of the estate at the time of the
testator's death, or on its value ten years later? (c) In determining the net value of the
estate subject to tax, is it proper to deduct the compensation due to trustees? (d) What
law governs the case at bar? Should the provisions of Act No. 3606 favorable to the taxpayer be given retroactive effect? (e) Has there been deliquency in the payment of
the inheritance tax? If so, should the additional interest claimed by the defendant in his
appeal be paid by the estate? Other points of incidental importance, raised by the
parties in their briefs, will be touched upon in the course of this opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to pay the same.
Section 1536 as amended, of the Administrative Code, imposes the tax upon "every
transmission by virtue of inheritance, devise, bequest, giftmortis causa, or advance in
anticipation of inheritance,devise, or bequest." The tax therefore is upon transmission or
the transfer or devolution of property of a decedent, made effective by his death. (61

C. J., p. 1592.) It is in reality an excise or privilege tax imposed on the right to succeed
to, receive, or take property by or under a will or the intestacy law, or deed, grant, or
gift to become operative at or after death. Acording to article 657 of the Civil Code,
"the rights to the succession of a person are transmitted from the moment of his death."
"In other words", said Arellano, C. J., ". . . the heirs succeed immediately to all of the
property of the deceased ancestor. The property belongs to the heirs at the moment of
the death of the ancestor as completely as if the ancestor had executed and
delivered to them a deed for the same before his death." (Bondad vs. Bondad, 34 Phil.,
232. See also, Mijares vs. Nery, 3 Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil., 13;
Lubrico vs. Arbado, 12 Phil., 391; Innocencio vs. Gat-Pandan, 14 Phil., 491; Aliasas
vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs.
Ignacio, 19 Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti
Steamship Co., 41 Phil., 531; Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First Instance of
Capiz, 51 Phil., 396; Baun vs. Heirs of Baun, 53 Phil., 654.) Plaintiff, however, asserts that
while article 657 of the Civil Code is applicable to testate as well as intestate
succession, it operates only in so far as forced heirs are concerned. But the language of
article 657 of the Civil Code is broad and makes no distinction between different
classes of heirs. That article does not speak of forced heirs; it does not even use the
word "heir". It speaks of the rights of succession and the transmission thereof from the
moment of death. The provision of section 625 of the Code of Civil Procedure regarding
the authentication and probate of a will as a necessary condition to effect transmission
of property does not affect the general rule laid down in article 657 of the Civil Code.
The authentication of a will implies its due execution but once probated and allowed
the transmission is effective as of the death of the testator in accordance with article
657 of the Civil Code. Whatever may be the time when actual transmission of the
inheritance takes place, succession takes place in any event at the moment of the
decedent's death. The time when the heirs legally succeed to the inheritance may
differ from the time when the heirs actually receive such inheritance. "Poco importa",
says Manresa commenting on article 657 of the Civil Code, "que desde el falleimiento
del causante, hasta que el heredero o legatario entre en posesion de los bienes de la
herencia o del legado, transcurra mucho o poco tiempo, pues la adquisicion ha de
retrotraerse al momento de la muerte, y asi lo ordena el articulo 989, que debe
considerarse como complemento del presente." (5 Manresa, 305; see also, art. 440, par.
1, Civil Code.) Thomas Hanley having died on May 27, 1922, the inheritance tax
accrued as of the date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow
that the obligation to pay the tax arose as of the date. The time for the payment on
inheritance tax is clearly fixed by section 1544 of the Revised Administrative Code as
amended by Act No. 3031, in relation to section 1543 of the same Code. The two
sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions. The following
shall not be taxed:
(a) The merger of the usufruct in the owner of the naked title.

(b) The transmission or delivery of the inheritance or legacy by the

fiduciary heir or legatee to the trustees.
(c) The transmission from the first heir, legatee, or donee in favor of
another beneficiary, in accordance with the desire of the predecessor.
In the last two cases, if the scale of taxation appropriate to the new beneficiary
is greater than that paid by the first, the former must pay the difference.
SEC. 1544. When tax to be paid. The tax fixed in this article shall be paid:
(a) In the second and third cases of the next preceding section, before
entrance into possession of the property.
(b) In other cases, within the six months subsequent to the death of the
predecessor; but if judicial testamentary or intestate proceedings shall be
instituted prior to the expiration of said period, the payment shall be made
by the executor or administrator before delivering to each beneficiary his
share.
If the tax is not paid within the time hereinbefore prescribed, interest at the rate
of twelve per centum per annum shall be added as part of the tax; and to the
tax and interest due and unpaid within ten days after the date of notice and
demand thereof by the collector, there shall be further added a surcharge of
twenty-five per centum.
A certified of all letters testamentary or of admisitration shall be furnished the
Collector of Internal Revenue by the Clerk of Court within thirty days after their
issuance.
It should be observed in passing that the word "trustee", appearing in subsection (b) of
section 1543, should read "fideicommissary" or "cestui que trust". There was an obvious
mistake in translation from the Spanish to the English version.
The instant case does fall under subsection (a), but under subsection (b), of section
1544 above-quoted, as there is here no fiduciary heirs, first heirs, legatee or donee.
Under the subsection, the tax should have been paid before the delivery of the
properties in question to P. J. M. Moore as trustee on March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real
properties are concerned, did not and could not legally pass to the instituted heir,
Matthew Hanley, until after the expiration of ten years from the death of the testator on
May 27, 1922 and, that the inheritance tax should be based on the value of the estate
in 1932, or ten years after the testator's death. The plaintiff introduced evidence tending
to show that in 1932 the real properties in question had a reasonable value of only
P5,787. This amount added to the value of the personal property left by the deceased,

which the plaintiff admits is P1,465, would generate an inheritance tax which, excluding
deductions, interest and surcharge, would amount only to about P169.52.
If death is the generating source from which the power of the estate to impose
inheritance taxes takes its being and if, upon the death of the decedent, succession
takes place and the right of the estate to tax vests instantly, the tax should be
measured by the vlaue of the estate as it stood at the time of the decedent's death,
regardless of any subsequent contingency value of any subsequent increase or
decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and Bancroft,
Inheritance Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep.,
747; 44 Law. ed., 969.) "The right of the state to an inheritance tax accrues at the
moment of death, and hence is ordinarily measured as to any beneficiary by the value
at that time of such property as passes to him. Subsequent appreciation or depriciation
is immaterial." (Ross, Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the rule in Cyclopedia of Law of and
Procedure (vol. 37, pp. 1574, 1575) that, in the case of contingent remainders, taxation
is postponed until the estate vests in possession or the contingency is settled. This rule
was formerly followed in New York and has been adopted in Illinois, Minnesota,
Massachusetts, Ohio, Pennsylvania and Wisconsin. This rule, horever, is by no means
entirely satisfactory either to the estate or to those interested in the property (26 R. C. L.,
p. 231.). Realizing, perhaps, the defects of its anterior system, we find upon examination
of cases and authorities that New York has varied and now requires the immediate
appraisal of the postponed estate at its clear market value and the payment forthwith
of the tax on its out of the corpus of the estate transferred. (In re Vanderbilt, 172 N. Y.,
69; 69 N. E., 782; In re Huber, 86 N. Y. App. Div., 458; 83 N. Y. Supp., 769; Estate of Tracy,
179 N. Y., 501; 72 N. Y., 519; Estate of Brez, 172 N. Y., 609; 64 N. E., 958; Estate of Post, 85
App. Div., 611; 82 N. Y. Supp., 1079. Vide also, Saltoun vs. Lord Advocate, 1 Peter. Sc.
App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas., 888.) California adheres to this new rule
(Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions, we hold that a transmission by
inheritance is taxable at the time of the predecessor's death, notwithstanding the
postponement of the actual possession or enjoyment of the estate by the beneficiary,
and the tax measured by the value of the property transmitted at that time regardless
of its appreciation or depreciation.
(c) Certain items are required by law to be deducted from the appraised gross in
arriving at the net value of the estate on which the inheritance tax is to be computed
(sec. 1539, Revised Administrative Code). In the case at bar, the defendant and the
trial court allowed a deduction of only P480.81. This sum represents the expenses and
disbursements of the executors until March 10, 1924, among which were their fees and
the proven debts of the deceased. The plaintiff contends that the compensation and
fees of the trustees, which aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL, NN,
OO), should also be deducted under section 1539 of the Revised Administrative Code
which provides, in part, as follows: "In order to determine the net sum which must bear

the tax, when an inheritance is concerned, there shall be deducted, in case of a

resident, . . . the judicial expenses of the testamentary or intestate proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney vs.
Saunders, 16 How., 535; 14 Law. ed., 1047). But from this it does not follow that the
compensation due him may lawfully be deducted in arriving at the net value of the
estate subject to tax. There is no statute in the Philippines which requires trustees'
commissions to be deducted in determining the net value of the estate subject to
inheritance tax (61 C. J., p. 1705). Furthermore, though a testamentary trust has been
created, it does not appear that the testator intended that the duties of his executors
and trustees should be separated. (Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893; 175
App. Div., 363; In re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph
5 of his will, the testator expressed the desire that his real estate be handled and
managed by his executors until the expiration of the period of ten years therein
provided. Judicial expenses are expenses of administration (61 C. J., p. 1705) but, in
State vs. Hennepin County Probate Court (112 N. W., 878; 101 Minn., 485), it was said: ". .
. The compensation of a trustee, earned, not in the administration of the estate, but in
the management thereof for the benefit of the legatees or devises, does not come
properly within the class or reason for exempting administration expenses. . . . Service
rendered in that behalf have no reference to closing the estate for the purpose of a
distribution thereof to those entitled to it, and are not required or essential to the
perfection of the rights of the heirs or legatees. . . . Trusts . . . of the character of that
here before the court, are created for the the benefit of those to whom the property
ultimately passes, are of voluntary creation, and intended for the preservation of the
estate. No sound reason is given to support the contention that such expenses should
be taken into consideration in fixing the value of the estate for the purpose of this tax."
(d) The defendant levied and assessed the inheritance tax due from the estate of
Thomas Hanley under the provisions of section 1544 of the Revised Administrative Code,
as amended by section 3 of Act No. 3606. But Act No. 3606 went into effect on January
1, 1930. It, therefore, was not the law in force when the testator died on May 27, 1922.
The law at the time was section 1544 above-mentioned, as amended by Act No. 3031,
which took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in force at the time
of the death of the decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p. 3461).
The taxpayer can not foresee and ought not to be required to guess the outcome of
pending measures. Of course, a tax statute may be made retroactive in its operation.
Liability for taxes under retroactive legislation has been "one of the incidents of social
life." (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup. Ct. Rep., 44.) But legislative
intent that a tax statute should operate retroactively should be perfectly clear. (Scwab
vs. Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings Bank, 257 U. S., 602;
Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) "A statute
should be considered as prospective in its operation, whether it enacts, amends, or
repeals an inheritance tax, unless the language of the statute clearly demands or
expresses that it shall have a retroactive effect, . . . ." (61 C. J., P. 1602.) Though the last
paragraph of section 5 of Regulations No. 65 of the Department of Finance makes

section 3 of Act No. 3606, amending section 1544 of the Revised Administrative Code,
applicable to all estates the inheritance taxes due from which have not been paid, Act
No. 3606 itself contains no provisions indicating legislative intent to give it retroactive
effect. No such effect can begiven the statute by this court.
The defendant Collector of Internal Revenue maintains, however, that certain provisions
of Act No. 3606 are more favorable to the taxpayer than those of Act No. 3031, that
said provisions are penal in nature and, therefore, should operate retroactively in
conformity with the provisions of article 22 of the Revised Penal Code. This is the reason
why he applied Act No. 3606 instead of Act No. 3031. Indeed, under Act No. 3606, (1)
the surcharge of 25 per cent is based on the tax only, instead of on both the tax and
the interest, as provided for in Act No. 3031, and (2) the taxpayer is allowed twenty
days from notice and demand by rthe Collector of Internal Revenue within which to
pay the tax, instead of ten days only as required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an offense
committed against the state which, under the Constitution, the Executive has the
power to pardon. In common use, however, this sense has been enlarged to include
within the term "penal statutes" all status which command or prohibit certain acts, and
establish penalties for their violation, and even those which, without expressly
prohibiting certain acts, impose a penalty upon their commission (59 C. J., p. 1110).
Revenue laws, generally, which impose taxes collected by the means ordinarily
resorted to for the collection of taxes are not classed as penal laws, although there are
authorities to the contrary. (See Sutherland, Statutory Construction, 361; Twine Co. vs.
Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910;
Com. vs. Standard Oil Co., 101 Pa. St., 150; State vs. Wheeler, 44 P., 430; 25 Nev. 143.)
Article 22 of the Revised Penal Code is not applicable to the case at bar, and in the
absence of clear legislative intent, we cannot give Act No. 3606 a retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time
and the tax may be paid within another given time. As stated by this court, "the mere
failure to pay one's tax does not render one delinqent until and unless the entire period
has eplased within which the taxpayer is authorized by law to make such payment
without being subjected to the payment of penalties for fasilure to pay his taxes within
the prescribed period." (U. S. vs. Labadan, 26 Phil., 239.)
The defendant maintains that it was the duty of the executor to pay the inheritance tax
before the delivery of the decedent's property to the trustee. Stated otherwise, the
defendant contends that delivery to the trustee was delivery to the cestui que trust, the
beneficiery in this case, within the meaning of the first paragraph of subsection (b) of
section 1544 of the Revised Administrative Code. This contention is well taken and is
sustained. The appointment of P. J. M. Moore as trustee was made by the trial court in
conformity with the wishes of the testator as expressed in his will. It is true that the word
"trust" is not mentioned or used in the will but the intention to create one is clear. No
particular or technical words are required to create a testamentary trust (69 C. J., p.
711). The words "trust" and "trustee", though apt for the purpose, are not necessary. In
fact, the use of these two words is not conclusive on the question that a trust is created

(69 C. J., p. 714). "To create a trust by will the testator must indicate in the will his
intention so to do by using language sufficient to separate the legal from the equitable
estate, and with sufficient certainty designate the beneficiaries, their interest in the
ttrust, the purpose or object of the trust, and the property or subject matter thereof.
Stated otherwise, to constitute a valid testamentary trust there must be a concurrence
of three circumstances: (1) Sufficient words to raise a trust; (2) a definite subject; (3) a
certain or ascertain object; statutes in some jurisdictions expressly or in effect so
providing." (69 C. J., pp. 705,706.) There is no doubt that the testator intended to create
a trust. He ordered in his will that certain of his properties be kept together undisposed
during a fixed period, for a stated purpose. The probate court certainly exercised sound
judgment in appointment a trustee to carry into effect the provisions of the will (see sec.
582, Code of Civil Procedure).
P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in
him (sec. 582 in relation to sec. 590, Code of Civil Procedure). The mere fact that the
estate of the deceased was placed in trust did not remove it from the operation of our
inheritance tax laws or exempt it from the payment of the inheritance tax. The
corresponding inheritance tax should have been paid on or before March 10, 1924, to
escape the penalties of the laws. This is so for the reason already stated that the
delivery of the estate to the trustee was in esse delivery of the same estate to the cestui
que trust, the beneficiary in this case. A trustee is but an instrument or agent for
thecestui que trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed.,
1086). When Moore accepted the trust and took possesson of the trust estate he
thereby admitted that the estate belonged not to him but to his cestui que
trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p. 692, n. 63). He did not acquire
any beneficial interest in the estate. He took such legal estate only as the proper
execution of the trust required (65 C. J., p. 528) and, his estate ceased upon the
fulfillment of the testator's wishes. The estate then vested absolutely in the beneficiary
(65 C. J., p. 542).
The highest considerations of public policy also justify the conclusion we have reached.
Were we to hold that the payment of the tax could be postponed or delayed by the
creation of a trust of the type at hand, the result would be plainly disastrous. Testators
may provide, as Thomas Hanley has provided, that their estates be not delivered to
their beneficiaries until after the lapse of a certain period of time. In the case at bar, the
period is ten years. In other cases, the trust may last for fifty years, or for a longer period
which does not offend the rule against petuities. The collection of the tax would then
be left to the will of a private individual. The mere suggestion of this result is a sufficient
warning against the accpetance of the essential to the very exeistence of government.
(Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S.,
491; 25 Law. ed., 558; Lane County vs. Oregon, 7 Wall., 71; 19 Law. ed., 101; Union
Refrigerator Transit Co. vs. Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150;
Charles River Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation to
pay taxes rests not upon the privileges enjoyed by, or the protection afforded to, a
citizen by the government but upon the necessity of money for the support of the state
(Dobbins vs. Erie Country, supra). For this reason, no one is allowed to object to or resist
the payment of taxes solely because no personal benefit to him can be pointed out.

(Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While courts will
not enlarge, by construction, the government's power of taxation (Bromley vs.
McCaughn, 280 U. S., 124; 74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place
upon tax laws so loose a construction as to permit evasions on merely fanciful and
insubstantial distictions. (U. S. vs. Watts, 1 Bond., 580; Fed. Cas. No. 16,653; U. S. vs.
Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690, followed in Froelich & Kuttner vs. Collector
of Customs, 18 Phil., 461, 481; Castle Bros., Wolf & Sons vs. McCoy, 21 Phil., 300; Muoz &
Co. vs. Hord, 12 Phil., 624; Hongkong & Shanghai Banking Corporation vs. Rafferty, 39
Phil., 145; Luzon Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When proper, a tax statute
should be construed to avoid the possibilities of tax evasion. Construed this way, the
statute, without resulting in injustice to the taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy deeply intrenched in our tax system.
Thus, no court is allowed to grant injunction to restrain the collection of any internal
revenue tax ( sec. 1578, Revised Administrative Code; Sarasola vs. Trinidad, 40 Phil., 252).
In the case of Lim Co Chui vs. Posadas (47 Phil., 461), this court had occassion to
demonstrate trenchment adherence to this policy of the law. It held that "the fact that
on account of riots directed against the Chinese on October 18, 19, and 20, 1924, they
were prevented from praying their internal revenue taxes on time and by mutual
agreement closed their homes and stores and remained therein, does not authorize the
Collector of Internal Revenue to extend the time prescribed for the payment of the
taxes or to accept them without the additional penalty of twenty five per cent."
(Syllabus, No. 3.)
". . . It is of the utmost importance," said the Supreme Court of the United States, ". . . that
the modes adopted to enforce the taxes levied should be interfered with as little as
possible. Any delay in the proceedings of the officers, upon whom the duty is
developed of collecting the taxes, may derange the operations of government, and
thereby, cause serious detriment to the public." (Dows vs. Chicago, 11 Wall., 108; 20
Law. ed., 65, 66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents has been delinquent in the payment
of inheritance tax and, therefore, liable for the payment of interest and surcharge
provided by law in such cases.
The delinquency in payment occurred on March 10, 1924, the date when Moore
became trustee. The interest due should be computed from that date and it is error on
the part of the defendant to compute it one month later. The provisions cases is
mandatory (see and cf. Lim Co Chui vs. Posadas, supra), and neither the Collector of
Internal Revenuen or this court may remit or decrease such interest, no matter how
heavily it may burden the taxpayer.
To the tax and interest due and unpaid within ten days after the date of notice and
demand thereof by the Collector of Internal Revenue, a surcharge of twenty-five per
centum should be added (sec. 1544, subsec. (b), par. 2, Revised Administrative Code).
Demand was made by the Deputy Collector of Internal Revenue upon Moore in a
communiction dated October 16, 1931 (Exhibit 29). The date fixed for the payment of

the tax and interest was November 30, 1931. November 30 being an official holiday, the
tenth day fell on December 1, 1931. As the tax and interest due were not paid on that
date, the estate became liable for the payment of the surcharge.
In view of the foregoing, it becomes unnecessary for us to discuss the fifth error assigned
by the plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge due from the
estate of Thomas Hanley inaccordance with the conclusions we have reached.
At the time of his death, the deceased left real properties valued at P27,920 and
personal properties worth P1,465, or a total of P29,385. Deducting from this amount the
sum of P480.81, representing allowable deductions under secftion 1539 of the Revised
Administrative Code, we have P28,904.19 as the net value of the estate subject to
inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised Administrative
Code, should be imposed at the rate of one per centum upon the first ten thousand
pesos and two per centum upon the amount by which the share exceed thirty
thousand pesos, plus an additional two hundred per centum. One per centum of ten
thousand pesos is P100. Two per centum of P18,904.19 is P378.08. Adding to these two
sums an additional two hundred per centum, or P965.16, we have as primary tax,
correctly computed by the defendant, the sum of P1,434.24.
To the primary tax thus computed should be added the sums collectible under section
1544 of the Revised Administrative Code. First should be added P1,465.31 which stands
for interest at the rate of twelve per centum per annum from March 10, 1924, the date
of delinquency, to September 15, 1932, the date of payment under protest, a period
covering 8 years, 6 months and 5 days. To the tax and interest thus computed should
be added the sum of P724.88, representing a surhcarge of 25 per cent on both the tax
and interest, and also P10, the compromise sum fixed by the defendant (Exh. 29), giving
a grand total of P3,634.43.
As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is
legally due from the estate. This last sum is P390.42 more than the amount demanded
by the defendant in his counterclaim. But, as we cannot give the defendant more than
what he claims, we must hold that the plaintiff is liable only in the sum of P1,191.27 the
amount stated in the counterclaim.
The judgment of the lower court is accordingly modified, with costs against the plaintiff
in both instances. So ordered.
G.R. No. L-27531 December 24, 1927
In re estate of the deceased Victoriana Saavedra. MACARIO MACROHON ONG
HAM, administrator-appellant,

vs.
JUAN SAAVEDRA, ET AL., opponents-appellees.
Frank H. Young and Pablo Lorenzo for appellant.
No appearance for appellees.

VILLAMOR, J.:
Macario Macrohon Ong Ham, widower and executor of the joint last will and testament
of Victoriana Saavedra and himself, presented said will for probate, which was ordered
by the Court of First Instance of Zamboanga in its decree of February 21, 1924.
This executor submitted a scheme of partition and distribution of the property in
accordance with the terms of the joint will, to which Juan Saavedra and others filed an
opposition. The executor rejoined insisting upon the approval of the scheme and asking
that the opposition of Juan Saavedra and others be overruled.
On March 25, 1926, the parties submitted a statement of facts, which reads as follows:
1. That Victoriana Saavedra died in the municipality and Province of
Zamboanga, P. I., without descendants or ascendants, being at that time
married to Macario Macrohon Ong Ham, both of them having executed a joint
will, which joint will has been duly admitted to probate in this court.
2. That the only near relations of the said Victoriana Saavedra, with the right to
inherit her estate are her brothers Juan and Segundo Saavedra; her nephews
and nieces, Teofilo Saavedra, Manuel Saavedra, Victoriana Saavedra, Mariano
Saavedra, Froilan Saavedra, Josefa Saavedra, Encarnacion Carpio and Macra
Carpio, in case that the said Victoriana Saavedra died intestate, or did not
dispose of her property in said will.
3. That aside from the estate mentioned in the said last will and testament, duly
probated by this Honorable Court, there exist another parcel of land, acquired
by Ong Ham the year 1920, by purchase from Ong Tah, and adjudicated to the
said Ong Ham in Expediente No. 6 (Cadastral).
Lot No. 3057, with the improvements thereon in favor of the persons named
below in the following proportions: Ong Ham, aged 65 years, married to
Victoriana Saavedra, 19/20 parts; Crispulo Macoto Cruz, of legal age, 1/40 part;
and Juan Mocoto, 1/40 part.
4. That the interest parties in this proceeding herewith submit to this Honorable
Court the rights of the respective parties in this estate, in accordance with the
terms of this joint last will and testament of the spouses, Macario Macrohon Ong
Ham, and of Victoriana Saavedra, deceased.

5. That the parties representing Macario Macrohon Ong Ham admit that he sold
lots Nos. 34 and 35, ofExpediente No. 8196, for the sum of P1,900, believing in
good faith that he could sell the same for his personal uses.
6. That the party representing Juan Saavedra, and the other relations heretofore
named hereby withdraw their opposition which they have presented to the final
account of the surviving spouse, Macario Macrohon Ong Ham, and conform to
the same, and ask that the Court approve the said final account.
The will referred to in the statement of facts above quoted reads as follows:
That we, Macario Macrohon Ong Ham Victoriana Saavedra, both residing at
San Roque, municipality and Province of Zamboanga, Philippine Islands, and
both of about 70 years of age, realizing that we have but a few more years to
live, and each of us being in the full enjoyment of his intellectual faculties and
not acting by virtue of threats, force or undue influence, individually and
conjointly do hereby make public, declare, and execute this, our last will and
testament, in the following terms:
We hereby declare that we are husband and wife; that we have had no issue,
nor have we adopted children.
We hereby likewise declare that Macario Macrohon Ong Ham is a native of
China, having resided in Zamboanga, Philippine Islands for over 40 years, and
that Victoriana Saavedra is a native of the Philippine Islands.
We furthermore declare that Macario Macrohon Ong Ham has two nephews at
present residing in Zamboanga, Philippine Islands, whom he has always treated
as his own sons, following the custom of Amoy, China, whose names and ages
respectively as follows:
Ong Ka Chiew, residing at San Roque, Zambaoanga, P. I., about 20 years of age,
single, and Ong Ka Jian, also residing at San Roque, Zamboanga, P.I., about 18
years of age, single.
We also declare that there are actually registered in our names, as conjugal
property, the following parcels of land located in Zamboanga, P. I., to wit:
Lot No. 838 A, proceeding 7880, certificate No. 1257
Lot No. 825, proceeding 7880, certificate No. 1783
Lot No. 832, proceeding 7880, same certificate
Lot No. 330, proceeding 7880, certificate No. 4027
Lot No. 1, proceeding 7880, same certificate
Lot No. 199, proceeding 7880, certificate No. 736
Lot No. 329, proceeding 7880, certificate No. 858
Lot No. 838 C, proceeding 7880, certificate No. 1259
Lot No. 831 B, proceeding 7880, certificate No. 1256

Lot No. 817, proceeding 7880, certificate No. 1247

Lot No. 768, proceeding 7880, certificate No. 1105
Lot No. 35, proceeding 8196, certificate No. 1257
Lot No. 65 A, proceeding 8196, certificate No. 3688
Lot No. 834, proceeding 7880, certificate No. 4025
Lot No. 96, proceeding 8196, certificate No. 4025
Lot No. 57 A, proceeding 8196, certificate No. 4871
Lot No. 222, proceeding 7880, certificate No. 861
Lot No. 34, proceeding 8196, certificate No. 4858
Lot No. 137 C, proceeding 8196, certificate No. 2223
We do hereby agree jointly and individually, that our properties above described
by disposed of in the following manner:lawphi1.net
In case of the death of Macario Macrohon Ong Ham before Victoriana
Saavedra, we hereby order that the properties hereinafter described be jointly
given to Ong Ka Chiew and Ong Ka Jian , and should either of the two die
before Macario Macrohon Ong Ham, we order that all the said properties be
given to the survivor, which properties are described as follows:
Lot No. 838 C, proceeding 7880, certificate No. 1259
Lot No. 831 B, proceeding 7880, certificate No. 1256
Lot No. 825, proceeding 7880, certificate No. 1783
Lot No. 832, proceeding 7880, same certificate
Lot No. 330, proceeding 7880, certificate No. 4027
Lot No. 1, proceeding 7880, same certificate
Lot No. 199, proceeding 7880, certificate No. 736
Lot No. 329, proceeding 7880, certificate No. 858
Lot No. 35, proceeding 8196, certificate No. 1257
Lot No. 65 A, proceeding 8196, certificate No. 3688
Lot No. 834, proceeding 7880, certificate No. 4025
Lot No. 96, proceeding 8196, same certificate
Lot No. 57 A, proceeding 8196, certificate No. 4871
Lot No. 222, proceeding 7880, certificate No. 861
Lot No. 34, proceeding 8196, certificate 4858
Lot No. 137 C, proceeding 8196, certificate No. 2223
In case that Victoriana Saavedra should survive Macario Macrohon Ong Ham,
the lands and properties described below shall belong exclusively to Victoriana
Saavedra, to wit:
Lot No. 838 A, proceeding 7880, certificate No. 1257
Lot No. 817, proceeding 7880, certificate No. 1247
Lot No. 768, proceeding 7880, certificate No. 1105
Should Victoriana Saavedra die before Macario Macrohon Ong Ham, we order
that lot No. 817-A, proceeding No. 7880, certificate No. 1247, be adjudicated to

Segunda Saavedra, widow, sister of Victoriana Saavedra, free of all liens and
encumbrances.
We further order that all our debts and just obligations, including the expenses of
our last illness and funerals, be paid by Ong Ka Chiew and Ong Ka Jian.
If any of the legatees named herein should question or in any way attempt to
alter the disposition of any of our several properties, such legatee is to lose and
shall no longer receive the benefits and rights herein specified.
We individually and cojointly declare that the contents of this document have
been read aloud to us in our dialect and that we understand said contents, this
document having been read in the presence of each of us and in the presence
of the witnesses whose names are mentioned further on and who have signed
the present instrument together with ourselves.
In witness whereof, we sign this our last will and testament at Zamboanga,
Zamboanga, Philippine Islands, on this second (2) day of January, 1923.
We, Ong Peh, Ong Chua, and T. Arquiza, do hereby certify that the foregoing
document consisting of five (5) sheets including the present, was on the date
above-mentioned, signed by the testators Macario Macrohon Ong Ham and
Victoriana Saavedra on all its sheets, in our presence at their request, in their
presence, and in the presence of each other we have signed our names as
witnesses on all the sheets of said will.
The lower court solving the question raised by the parties in their agreement of facts,
held that the one-half of the property described in the will, all of lot No. 3057, cadastral
case No. 6; one-half of the cash balance of the final account to be rendered by the
executor, and half of the proceeds of the sale of lots No. 34 and 35 of Proceeding No.
8196, belong to Macario Macrohon Ong Ham; and as it appears from the will quoted,
as well as from the agreement dated March 25, 1926, that Victoriana Saavedra left no
legitimate ascendants or descendants at the time of her death Macario Macrohon
Ong Ham, her widower, is, according to the provisions of articles 837 of the Civil Code,
entitled to the usufruct of one-half of the estate of the said Victoriana Saavedra,
consisting of one-half of the property described in the will, excluding lots No. 817 and
768 of proceeding No. 7880, given to Segunda Saavedra with the consent of Macario
Macrohon Ong Ham; of one-half of the cash balance of the executor's final account,
and of half of the proceeds of the sale of lots Nos. 34 and 35 in proceeding No. 8196,
and said estate is adjudicated as follows: one-half of the same belongs in usufruct to
the widower Macario Macrohon Ong Ham, and the naked ownership of this half as well
as the full ownership of the other half is adjudicated to Victoriana Saavedra's heirs,
named in the said agreement dated March 25, 1926, in the following manner:
sixteenths of the naked ownership of the one-half in usufruct and sixteenths of the other
half in full ownership, to Juan Saavedra; sixteenths of the naked ownership of the onehalf in usufruct ands sixteenths of the other half in full ownership, to Segunda Saavedra;
and, sixteenths of the naked ownership of the one-half in usufruct and sixteenths of the

other half in full ownership to Teofilo Saavedra, Manuel Saavedra, Victoriana Saavedra,
Mariano Saavedra, Froilan Saavedra and Josefa Saavedra, children of Mateo
Saavedra, deceased brother of Victoriana Saavedra, in equal parts; and to
Encarnacion Carpio and Macra Carpio, daughters of Petrona Saavedra, deceased
sister of Victoriana Saavedra, sixteenths of the naked ownership of the one-half in
usufruct and sixteenths of the other half in full ownership, in equal parts.
As regards lots Nos. 817 and 768 of proceeding No. 7880, given to Segunda
Saavedra, the court adjudicates the same to the said Segunda Saavedra, in
accordance with the clauses on lines 99-111 of the will.
Finally, the court orders that the executor, after paying the inheritance tax,
distribute among Victoriana Saavedra's heirs named in the agreement of March
25, 1926, the part belonging to each of them as hereinabove stated, and after
this delivery is made and the inheritance tax, if any, is paid, this proceeding is to
be considered closed ipso facto.
Counsel for the executor appealed from this decision and assigns in his brief the
following alleged errors as committed by the lower court:
I. In holding in its auto, of November 26, 1926, that the deceased, Victoriana
Saavedra, died partially intestate, and did not dispose of all her property by the
joint last will and testament executed by herself and her husband, Macario
Macrohon Ong Ham, and in not finding that under the terms of the aforesaid
joint will the legatees, Ong Ka Chiew and Ong Ka Jian, named therein, were
entitled to receive her estate and participation in the sixteen parcels of land
devised under the said joint will, by the said spouses.
II. In holding that the brother and the sister of Victoriana Saavedra, by name,
Juan Saavedra and Segundo Saavedra; her nephews and nieces, by name,
Teofilo Saavedra, Manuel Saavedra, Victoriana Saavedra, Mariano Saavedra,
Froilan Saavedra, Josefa Saavedra, Encarnacion Carpio and Macra Carpio, her
next of kin were entitled to receive any part of her estate and participation in
the said sixteen parcels of land, devised to the above named legatees, Ong Ka
Chiew and Ong Ka Jian, under the terms of the said joint last will and testament.
The parts of the will pertinent to the questions raised by the appellant are:
We do agree jointly and individually that our properties above described be
disposed of in the following manner:
In case of the death of Macario Macrohon Ong Ham before Victoriana
Saavedra, we hereby order that the properties hereinafter described given to
Ong Ka Chiew and Ong Ka Jian jointly, and should either of the two die before
Macario Macrohon Ong Ham, we order that all the said properties be given to
the survivor, which properties are described as follows:

(Here follows a description of 16 of the 19 lots that are also described in the will
as conjugal property of the testator and testatrix.)
In case that Victoriana Saavedra should survive Macario Macrohon Ong Ham,
the lands and properties described below shall belong exclusively to Victoriana
Saavedra, to wit:
Lot No. 838 A, proceeding 7880, certificate No. 1257
Lot No. 817, proceeding 7880, certificate No. 1247
Lot No. 768, proceeding 7880, certificate No. 1105
Should Victoriana Saavedra die before Macario Macrohon Ong Ham, we order
that lot No. 817 A, proceeding No. 7880, certificate No. 1247, be adjudicated
to Segunda Saavedra, widow, sister of Victoriana Saavedra, free of all liens and
encumbrances.
We also order that lot No. 768, proceeding No. 7880, certificate No. 1105, be
adjudicated to Segunda Saavedra and her heirs, on condition that she devote
the products of the same to having masses said for the repose of the soul of
Victoriana Saavedra.
In case of the death of either of us, we order that the surviving spouse be
appointed executor of this our last will and testament.
Appellant alleges that the trial court erred in holding that Victoriana Saavedra died
partly intestate. Article 658 of the Civil Code provides:
ART. 658. Succession is effected either by the will of man expressed by the
testament or, in the absence of a testament, by operation of law.
The first is called testamentary, the second legal succession.
It may also be effected partly by the will of man and partly by operation of law.
According to this, there are three ways in which succession may be effected: by the will
of man, by the law, or by both at the same time. In the first case the succession is called
testamentary, because it is based on the last will and testament, which is the orderly
manifestation of the testator's will; in the second, it is called legal, because it takes
effect by operation of the law; and the third is called mixed, because it partakes of the
character of both testamentary and legal succession.
Commenting on the third mode of effecting succession, Mr. Manresa says: "The rule of
indivisibility and incompatibility was transferred to our laws from pure Romanism, and it
remained in them until the XV Century, when the law of the Ordenamiento previously
cited repealed the maxim nemo pro parte testatus pro parte intestatus decedere
protest. This same repeal is confirmed in paragraph 3 of the article under consideration
(658), which prescribes that it may also be effected partly by the will of man and partly

by operation of law, and in articles 764 and 912 above cited which call the legal heirs
to the enjoyment of the part of the inheritance not disposed of by the testator in his
will." (Vol. 5, 1921 ed., pp. 326, 327.)
This is a refutation of the appellant's argument that no one who has executed a will can
die partly intestate. That the rule of indivisibility of the testator's will invoked by the
appellant does not hold good in this jurisdiction, is shown, moreover, by articles 764 and
912 of the Civil Code. According to the first of these articles, a will is valid even though it
does not contain any institution of an heir, or if such institution does not include the
entire estate, and even though the person instituted does not accept the inheritance or
is disqualified to inherit; according to the second, one of the ways in which legal
succession may take place is when the will does not institute an heir to all or part of the
property, or does not dispose of all that belongs to the testator, in which case legal
succession shall take place only with respect to the property which the testator has not
disposed of.
Assuming that the joint will in question is valid, it follows that the deceased Victoriana
Saavedra specified therein that parcels 187 and 768 in proceeding No. 7880 be
delivered as a legacy to her sister Segunda Saavedra, the first parcel free of all liens
and encumbrances, and the second on the condition that the legatee devote the
products of the same to having masses said for the repose to the testatrix's soul. As to
the remaining sixteen parcels, the testatrix disposed of her part in them conditionally,
that is to say, in case her husband Macario Macrohon Ong Ham died before she died,
said parcels were to be awarded to her husband's nephews, or to either of them in
case one should have died before the said Macario Macrohon Ong Ham. The
condition imposed in the will as precedent to the vesting in the alleged legatees Ong
Ka Chiew and Ong Ka Jian of the right to the legacy, not having been complied with,
the trial court found that the part of said property belonging to the testatriz should be
partitioned among the persons called on to succeed her under the law. We are of the
opinion that this finding is in accordance with the law, since, under article 791 of the
Civil Code, conditions imposed upon heirs and legatees shall be governed by the rules
established for conditional obligations in all matters not provided for by this section
(articles 790 to 805). And, in accordance with article 1114 of the Code, in conditional
obligations the acquisition of rights, as well as the extinction or loss of those already
acquired, shall depend upon the occurrence of the event constituting the condition.
Another error assigned by the appellant consist in the trial court not having found that,
under the terms of the joint will, the legatees Ong Ka Chiew and Ong Ka Jian were
entitled to receive the testatrix's share in the sixteen parcels of land mentioned in said
will.
The part of the will invoked by the appellant, states:
In case of the death of Macario Macrohon Ong Ham before Victoriana
Saavedra, we hereby order that the properties hereinafter described given to
Ong Ka Chiew and Ong Ka Jian jointly, and should either of the two die before

Macario Macrohon Ong Ham, we order that all the said properties be given to
the survivor.
The trial court, in interpreting this paragraph of the will in regard to legatees Ong Ka
Chiew and Ong Ka Jian, reached the right conclusion, and rightly, in our opinion, that it
provides for the substitution of legatees in case either of them should die before
Macario Macrohon Ong Ham; and that the acquisition by these legatees of any right to
the property described in the will depended on the condition that Macario Macrohon
Ong Ham died before Victoriana Saavedra.
The appellant also assigns as error the holding of the trial court that the opponents, the
brother, sister, nephews, and nieces of the testatrix, were entitled to receive her share in
the said sixteen parcels of land, given to the legatees, Ong Ka Chiew and Ong Ka Jian,
under the terms of the said joint will. Such a contention is untenable. As we have said,
the acquisition of right by the alleged legatees depends on the occurrence of the
event constituting the condition, that is, the death of Macario Macrohon Ong Ham
prior to that of his wife; and this condition not having been complied with, the said Ong
Ka Chiew and Ong Ka Jian have not acquired any right, and therefore the testatrix's
estate is to be divided among her heirs in accordance with the law.
To the sixteen parcels of land to which reference is her made, that is, those given to the
nephews of the testator, should be added lot No. 838--A, proceeding No. 7880,
certificate 1257, which the testatrix had reserved to herself (together with lots 817 and
768), in case she survived her husband Macario Macrohon Ong Ham.
One-half of these seventeen parcels of land belong to the widower, Macario
Macrohon Ong Ham, and the trial court shall order the division of the other half, that is,
the estate of the deceased Victoriana Saavedra, being one-half of the conjugal
property, between the widower and the opponents, as provided for in articles 945, 948
and 953 of the Civil Code. With this modification, the order appealed from is affirmed in
all other respects. So ordered.
[G. R. No. 4275. March 23, 1909.]
PAULA CONDE, Plaintiff-Appellee, vs. ROMAN ABAYA, Defendant-Appellant.
DECISION
ARELLANO, C.J.:
From the hearing of the appeal interposed by Roman Abaya in the special
proceedings brought in the Court of First Instance of La Laguna for the settlement of the
intestate estate and the distribution of the property of Casiano Abaya it
appears: chanrobles virtualawlibrary
I.
As antecedents: chanrobles virtualawlibrary that Casiano Abaya, unmarried,
the son of Romualdo Abaya and Sabina Labadia, died on the 6th of April 1899; that
Paula Conde, as the mother of the natural children Jose and Teopista Conde, whom

she states she had by Casiano Abaya, on the 6th of November, 1905, moved the
settlement of the said intestate succession; that an administrator having been
appointed for the said estate on the 25th of November, 1905, Roman Abaya, a son of
the said Romualdo Abaya and Sabina Labadia, the parents of the late Casiano Abaya,
came forward and opposed said appointment and claimed it for himself as being the
nearest relative of the deceased; that this was granted by the court below on the 9th
of January, 1906; that on the 17th of November, 1906, Roman Abaya moved that, after
due process of law, the court declare him to be the sole heir of Casiano Abaya, to the
exclusion of all other persons, especially of Paula Conde, and to be therefore entitled
to take possession of all the property of said estate, and that it be adjudicated to him;
and that on November 22, 1906, the court ordered the publication of notices for the
declaration of heirs and distribution of the property of the estate.
II.
That on the 28th of November, 1906, Paula Conde, in reply to the foregoing
motion of Roman Abaya, filed a petition wherein she stated that she acknowledged
the relationship alleged by Roman Abaya, but that she considered that her right was
superior to his and moved for a hearing of the matter, and, in consequence of the
evidence that she intended to present she prayed that she be declared to have
preferential rights to the property left by Casiano Abaya, and that the same be
adjudicated to her together with the corresponding products thereof.
III.
That the trial was held, both parties presenting documentary and oral
evidence, and the court below entered the following judgment: chanrobles
virtualawlibrary
That the administrator of the estate of Casiana Abaya should recognize Teopista and
Jose Conde as being natural children of Casiano Abaya; that the Petitioner Paula
Conde should succeed to the hereditary rights of her children with respect to the
inheritance of their deceased natural father Casiano Abaya; and therefore, it is hereby
declared that she is the only heir to the property of the said intestate estate, to the
exclusion of the administrator, Roman Abaya.
IV.
That Roman Abaya excepted to the foregoing judgment, appealed to this
court, and presented the following statement of errors: chanrobles virtualawlibrary
1.
The fact that the court below found that an ordinary action for the
acknowledgment of natural children under articles 135 and 137 of the Civil Code, might
be brought in special probate proceedings.
2.
The finding that after the death of a person claimed to be an
unacknowledged natural child, the mother of such presumed natural child, as heir to
the latter, may bring an action to enforce the acknowledgment of her deceased child
in accordance with articles 135 and 137 of the Civil Code.
3.
The finding in the judgment that the alleged continuous possession of the
deceased children of Paula Conde of the status of natural children of the late Casiano
Abaya, has been fully proven in these proceedings; and
4.
On the hypothesis that it was proper to adjudicate the property of this intestate
estate to Paula Conde, as improperly found by the court below, the court erred in not
having declared that said property should be reserved in favor of relatives of Casiano
Abaya to the third degree, and in not having previously demanded securities from

Paula Conde to guarantee the transmission of the property to those who might fall
within the reservation.
As to the first error assigned, the question is set up as to whether in special proceedings
for the administration and distribution of an intestate estate, an action might be
brought to enforce the acknowledgment of the natural child of the person from whom
the inheritance is derived, that is to say, whether one might appear as heir on the
ground that he is a recognized natural child of the deceased, not having been so
recognized by the deceased either voluntarily or compulsory by reason of a preexisting
judicial decision, but asking at the same time that, in the special proceeding itself, he
be recognized by the presumed legitimate heirs of the deceased who claim to be
entitled to the succession opened in the special proceeding.
According to section 782 of the Code of Civil Procedure
If there shall be a controversy before the Court of First Instance as to who the lawful
heirs of the deceased person are, or as to the distributive share to which each person is
entitled under the law, the testimony as to such controversy shall be taken in writing by
the judge, under oath and signed by witness. Any party in interest whose distributive
share is affected by the determination of such controversy, may appeal from the
judgment of the Court of First Instance determining such controversy to the Supreme
Court, within the time and in the manner provided in the last preceding section.
This court has decided the present question in the manner shown in the case of Juana
Pimental vs. Engracio Palanca (5 Phil. Rep. 436.) cralaw
The main question with regard to the second error assigned, is whether or not the
mother of a natural child now deceased, but who survived the person who, it is
claimed, was his natural father, also deceased, may bring an action for the
acknowledgment of the natural filiation in favor of such child in order to appear in his
behalf to receive the inheritance from the person who is supposed to be his natural
father.
In order to decide in the affirmative the court below has assigned the following as the
only foundation: chanrobles virtualawlibrary
In resolving a similar question Manresa says: chanrobles virtualawlibrary An
acknowledgment can only be demanded by the natural child and his descendants
whom it shall benefit, and should they be minors or otherwise incapacitated, such
person as legally represents them; the mother may ask it in behalf of her child so long as
he is under her authority. On this point no positive declaration has been made,
undoubtedly because it was not considered necessary. A private action is in question
and the general rule must be followed. Elsewhere the same author adds: chanrobles
virtualawlibrary It may so happen that the child dies before four years have expired
after attaining majority, or that the document supporting his petition for
acknowledgment is discovered after his death, such death perhaps occurring after his
parents had died, as is supposed by article 137, or during their lifetime. In any case such
right of action shall pertain to the descendants of the child whom the acknowledgment
may interest. (See Commentaries to arts. 135 and 137, Civil Code. Vol. I.) cralaw
The above doctrine, advanced by one of the most eminent commentators of the Civil
Code, lacks legal and doctrinal foundation. The power to transmit the right of such

action by the natural child to his descendants cannot be sustained under the law, and
still less to his mother.
It is without any support in law because the rule laid down in the code is most positive,
limiting in form, when establishing the exception for the exercise of such right of action
after the death of the presumed parents, as is shown hereafter. It is not supported by
any doctrine, because up to the present time no argument has been presented, upon
which even an approximate conclusion could be based.
Although the Civil Code considerably improved the condition of recognized natural
children, granting them rights and actions that they did not possess under the former
laws, they were not, however, placed upon the same plane as legitimate ones. The
difference that separates these two classes of children is still great, as proven by so
many articles dealing with the rights of the family and with succession in relation to the
members thereof. It may be laid down as a legal maxim, that whatever the code does
not grant to the legitimate children, or in connection with their rights, must still less be
understood as granted to recognized natural children or in connection with their rights.
There is not a single exception in its provisions.
If legitimacy is the attribute that constitutes the basis of the absolute family rights of the
child, the acknowledgment of the natural child is, among illegitimate ones, that which
unites him to the family of the father or the mother who recognizes him, and affords him
a participation in the rights of the family, relatively advantageous according to whether
they are alone or whether they concur with other individuals of the family of his purely
natural father or mother.
Thus, in order to consider the spirit of the Civil Code nothing is more logical than to
establish a comparison between an action to claim the legitimacy, and one to enforce
acknowledgment.
Art. 118.
The action to claim its legitimacy may be brought by the child at any
time of its lifetime and shall be transmitted to its heirs, should it die during minority or in a
state of insanity. In such cases the heirs shall be allowed a period of five years in which
to institute the action.
The action already instituted by the child is transmitted by its death to the heirs, if it has
not lapsed before then.
Art. 137.
The actions for the acknowledgment of natural children can be
instituted only during the life of the presumed parents, except in the following
cases: chanrobles virtualawlibrary
1.
If the father or mother died during the minority of the child, in which case the
latter may institute the action before the expiration of the first four years of its majority.
2.
If, after the death of the father or mother, some instrument, before unknown,
should be discovered in which the child is expressly acknowledged.
In this case the action must be instituted within the six months following the discovery
of such instrument.
On this supposition the first difference that results between one action and the other
consists in that the right of action for legitimacy lasts during the whole lifetime of the
child, that is, it can always be brought against the presumed parents or their heirs by

the child itself, while the right of action for the acknowledgment of a natural child does
not last his whole lifetime, and, as a general rule, it cannot be instituted against the heirs
of the presumed parents, inasmuch as it can be exercised only during the life of the
presumed parents.
With regard to the question at issue, that is, the transmission to the heirs of the presumed
parents of the obligation to admit the legitimate filiation, or to recognize the natural
filiation, there exists the most radical difference in that the former continues during the
life of the child who claims to be legitimate, and he may demand it either directly and
primarily from the said presumed parents, or indirectly and secondarily from the heirs of
the latter; while the second does not endure for life; as a general rule, it only lasts during
the life of the presumed parents. Hence the other difference, derived as a
consequence, that an action for legitimacy is always brought against the heirs of the
presumed parents in case of the death of the latter, while the action for
acknowledgment is not brought against the heirs of such parents, with the exception of
the two cases prescribed by article 137 transcribed above.
So much for the passive transmission of the obligation to admit the legitimate filiation, or
to acknowledge the natural filiation.
As to the transmission to the heirs of the child of the latters action to claim his
legitimacy, or to obtain the acknowledgment of his natural filiation, it is seen that the
code grants it in the first case, but not the second. It contains provisions for the
transmission of the right of action which, for the purpose of claiming his legitimacy
inheres in the child, but it does not say a word with regard to the transmission of the
right to obtain the acknowledgment of the natural filiation.
Therefore, the respective corollary of each of the two above-cited articles
is: chanrobles virtualawlibrary (1) That the right of action which devolves upon the child
to claim his legitimacy under article 118, may be transmitted to his heirs in certain cases
designated in the said article; (2) That the right of action for the acknowledgment of
natural children to which article 137 refers, can never be transmitted, for the reason
that the code makes no mention of it in any case, not even as an exception.
It is most illogical and contrary to every rule of correct interpretation, that the right of
action to secure acknowledgment by the natural child should be presumed to be
transmitted, independently, as a rule, to his heirs, while the right of action to claim
legitimacy from his predecessor is not expressly, independently, or, as a general rule,
conceded to the heirs of the legitimate child, but only relatively and as an exception.
Consequently, the pretension that the right of action on the part of the child to obtain
the acknowledgment of his natural filiation is transmitted to his descendants is
altogether unfounded. No legal provision exists to sustain such pretension, nor can an
argument of presumption be based on the lesser claim when there is no basis for the
greater one, and when it is only given as an exception in well-defined cases. It is
placing the heirs of the natural child on a better footing than the heirs of the legitimate
one, when, as a matter of fact, the position of a natural child is no better than, nor even
equal to, that of a legitimate child.
From the express and precise precepts of the code the following conclusions are
derived: chanrobles virtualawlibrary

The right of action that devolves upon the child to claim his legitimacy lasts during his
whole life, while the right to claim the acknowledgment of a natural child lasts only
during the life of his presumed parents.
Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during
his whole life, he may exercise it either against the presumed parents, or their heirs;
while the right of action to secure the acknowledgment of a natural child, since it does
not last during his whole life, but depends on that of the presumed parents, as a
general rule can only be exercised against the latter.
Usually the right of action for legitimacy devolving upon the child is of a personal
character and pertains exclusively to him, only the child may exercise it at any time
during his lifetime. As an exception, and in three cases only, it may be transmitted to
the heirs of the child, to wit, if he died during his minority, or while insane, or after action
had been already instituted.
An action for the acknowledgment of a natural child may, as an exception, be
exercised against the heirs of the presumed parents in two cases: chanrobles
virtualawlibrary first, in the event of the death of the latter during the minority of the
child, and second, upon the discovery of some instrument of express acknowledgment
of the child, executed by the father or mother, the existence of which was unknown
during the life of the latter.
But as such action for the acknowledgment of a natural child can only be exercised by
him. It cannot be transmitted to his descendants, or to his ascendants.
In support of the foregoing the following authorities may be cited: chanrobles
virtualawlibrary
Sanchez Roman, in his Treatise on Civil Law, propounds the question as to whether said
action should be considered transmissive to the heirs or descendants of the natural
child, whether he had or had not exercised it up to the time of his death, and decides it
as follows;
There is an entire absence of legal provisions, and at most, it might be deemed
admissible as a solution, that the right of action to claim the acknowledgment of a
natural child is transmitted by analogy to his heirs on the same conditions and terms
that it is transmitted to the descendants of a legitimate child, to claim his legitimacy,
under article 118, but nothing more; because on this point nothing warrants placing the
heirs of a natural child on a better footing than those of the legitimate child, and even
to compare them would not fail to be a strained and questionable matter, and one of
great difficulty for decision by the courts, for the simple reason that for the heirs of the
legitimate child, the said article 118 exists, while for those of the natural child, as we
have said, there is no provision in the code authorizing the same, although on the other
hand there is none that prohibits it. (Vol. V.) cralaw
Diaz Guijarro and Martinez Ruiz in their work on The Civil Code as construed by the
supreme court of Spain, commenting upon article 137, say: chanrobles virtualawlibrary
Article 118, taking into account the privileges due to the legitimacy of children, grants
them the right to claim said legitimacy during their lifetime, and even authorizes the
transmission of said right for the space of five years to the heirs thereof, if the child die
during his minority or in a state of insanity. But as article 137 is based on the

consideration that in the case of a natural child, ties are less strong and sacred in the
eyes of the law, it does not fix such a long and indefinite period for the exercise of the
action; it limits it to the life of the parents, excepting in the two cases mentioned in said
article; and it does not allow, as does article 118, the action to pass on to the heirs,
inasmuch as, although it does not prohibit it, and for that reason it might be deemed on
general principles of law to consent to it, such a supposition is inadmissible for the
reason that a comparison of both articles shows that the silence of the law in the latter
case is not, nor can it be, an omission, but a deliberate intent to establish a wide
difference between the advantages granted to a legitimate child and to a natural
one.
(Ibid., Vol. II, 171.) cralaw
Navarro Amandi (Cuestionario del Codigo Civil) raises the question: chanrobles
virtualawlibrary Can the heirs of a natural child claim the acknowledgment in those
cases wherein the father or mother are under obligation to acknowledge? And
says: chanrobles virtualawlibrary
Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that the
right of investigation forms a part of the estate of the child, and along with his
patrimony is transmitted to his heirs. The affirmation is altogether too categorical to be
admissible. If it were correct the same thing would happen as when the legitimacy of a
child is claimed, and as already seen, the right of action to demand the legitimacy is
not transmitted to the heirs in every case and as an absolute right, but under certain
limitations and circumstances. Now, were we to admit the doctrine of the court of
Rennes, the result would be that the claim for natural filiation would be more favored
than one for legitimate filiation. This would be absurd, because it cannot be conceived
that the legislator should have granted a right of action to the heirs of the natural child,
which is only granted under great limitations and in very few cases to those of a
legitimate one. Some persons insist that the same rules that govern legitimate filiation
apply by analogy to natural filiation, and that in this conception the heirs of the natural
child are entitled to claim it in the cases prescribed by article 118. The majority,
however, are inclined to consider the right to claim acknowledgment as a personal
right, and consequently, not transmissive to the heirs. Really there are not legal grounds
to warrant the transmission. (Vol. 2, 229.) cralaw
In a decision like the present one it is impossible to bring forward the argument of
analogy for the purpose of considering that the heirs of the natural child are entitled to
the right of action which article 118 concedes to the heirs of the legitimate child. The
existence of a provision for the one case and the absence thereof for the other is a
conclusive argument that inclusio unius est exclusio alterius, and it cannot be
understood that the provision of law should be the same when the same reason does
not hold in the one case as in the other.
The theory of the law of transmission is also entirely inapplicable in this case. This theory,
which in the Roman Law expressed the general rule that an heir who did not accept an
inheritance during his lifetime was incapacitated from transmitting it to his own heirs,
included at the same time the idea that if the inheritance was not transmitted because
the heir did not possess it, there were, however, certain things which the heir held and
could transmit. Such was the law and the right to accept the inheritance, for the

existing reason that all rights, both real and personal, shall pass to the heir; quia haeres
representat defunctum in omnibus et per omnia. According to article 659 of the Civil
Code, the inheritance includes all the property, rights, and obligations of a person,
which are not extinguished by his death. If the mother is the heir of her natural child,
and the latter, among other rights during his lifetime was entitled to exercise an action
for his acknowledgment against his father, during the life of the latter, or after his death
in some of the excepting cases of article 137, such right, which is a portion of his
inheritance, is transmitted to his mother as being his heir, and it was so understood by
the court of Rennes when it considered the right in question, not as a personal and
exclusive right of the child which is extinguished by his death, but as any other right
which might be transmitted after his death. This right of supposed transmission is even
less tenable than that sought to be sustained by the argument of analogy.
The right of action pertaining to the child to claim his legitimacy is in all respects superior
to that of the child who claims acknowledgment as a natural child. And it is evident
that the right of action to claim his legitimacy is not one of those rights which the
legitimate child may transmit by inheritance to his heirs; it forms no part of the
component rights of his inheritance. If it were so, there would have been no necessity to
establish its transmissibility to heirs as an exception in the terms and conditions of article
118 of the code. So that, in order that it may constitute a portion of the childs
inheritance, it is necessary that the conditions and the terms contained in article 118
shall be present, since without them, the right that the child held during his lifetime,
being personal and exclusive in principle, and therefore, as a general rule not
susceptible of transmission, would and should have been extinguished by his death.
Therefore, where no express provision like that of article 118 exists, the right of action for
the acknowledgment of a natural child is, in principle and without exception,
extinguished by his death, and cannot be transmitted as a portion of the inheritance of
the deceased child.
On the other hand, it said right of action formed a part of the childs inheritance, it
would be necessary to establish the doctrine that the right to claim such an
acknowledgment from the presumed natural father and from his heirs is an absolute
right of the heirs of the child, not limited by certain circumstances as in the case of the
heirs of a legitimate child; and if it is unreasonable to compare a natural child with a
legitimate one to place the heirs of a natural child and his inheritance on a better
footing than those of a legitimate child would not only be unreasonable, but, as stated
in one of the above citations, most absurd and illegal in the present state of the law
and in accordance with the general principles thereof.
For all of the foregoing reasons we hereby reverse the judgment appealed from in all its
parts, without any special ruling as to the costs of this instance.
Mapa, Johnson, Carson and Willard, JJ., concur.
Separate Opinions
TORRES, J., dissenting: chanrobles virtualawlibrary
The questions arising from the facts and points of law discussed in this litigation between
the parties thereto, decided in the judgment appealed from, and set up and discussed

in this instance by the said parties in their respective briefs, are subordinate in the first
place to the main point, submitted among others to the decision of this court, that is,
whether the right of action brought to demand from the natural father, or from his heirs,
the acknowledgment of the natural child which the former left at his death was, by
operation of the law, transmitted to the natural mother by reason of the death of the
said child acknowledged by her.
The second error assigned by the Appellant in his brief refers exclusively to this important
point of law.
Article 846 of the Civil Code prescribes: chanrobles virtualawlibrary
The right of succession which the law grants natural children extends reciprocally in
similar cases to the natural father or mother.
Article 944 reads: chanrobles virtualawlibrary
If the acknowledged natural or legitimized child should die without issue, either
legitimate or acknowledged by it, the father or mother who acknowledged it shall
succeed to its entire estate, and if both acknowledged it and are alive, they shall inherit
from it share and share alike.
It cannot be inferred from the above legal provisions that from the right of succession
which the law grants the natural father or mother upon the death of their natural child,
the right of the heirs of any of the said parents to claim the acknowledgment of the
natural child is excluded. No article is to be found in the Civil Code that expressly
provides for such exclusion or elimination of the right of the heirs of the deceased child
to claim his acknowledgment.
If under article 659 of said code, the inheritance includes all the property, rights, and
obligations of a person, which are not extinguished by his death, it is unquestionable
that among such rights stands that which the natural child had, while alive, to claim his
acknowledgment as such from his natural father, or from the heirs of the latter. There is
no reason or legal provision whatever to prevent the consideration that the right to
claim acknowledgment of the filiation of a deceased child from his natural father, or
from the heirs of the latter, is included in the hereditary succession of the deceased
child in favor of his natural mother.
It is to be regretted that such an eminent writer as Manresa is silent on this special point;
or that he is not very explicit in his comments on article 137 of the Civil Code. Among
the various noted writers on law, Professor Sanchez Roman is the only one who has
given his opinion in a categorical manner as to whether or not the right of action for the
acknowledgment of a deceased natural child shall be considered transmissive to his
heirs, as may be seen from the following: chanrobles virtualawlibrary
In order to complete the explanation of this article 137 of the Civil Code, three points
must be decided: chanrobles virtualawlibrary (1) Against whom shall an action for
acknowledgment be brought under the cases and terms to which the two exceptions
indicated in paragraphs 1 and 2 of article 137 refer? (2) Who is to represent the miner in
bringing this action when neither the father nor the mother has acknowledged him? (3)
Should this right of action be considered as transmitted to the heirs or descendants of
the natural child whether or not it was exercised at the time of his death?

With respect to the third, there is an entire absence of legal provisions, and at most, it
might be deemed admissible as a solution, that the right of action to claim the
acknowledgment of a natural child is transmitted by analogy to his heirs on the same
conditions and terms that it is transmitted to the descendants of the legitimate child, to
claim his legitimacy, under article 118, but no more; because on this point nothing
warrants placing the heirs of a natural child on a better footing than those of the
legitimate child, and even to compare them would not fail to be a strained and
questionable matter, and one of great difficulty for decision by the courts, for the
simple reason that for the heirs of the legitimate child the said article 118 exists, while for
those of the natural child, as we have said, there is no provision in the code authorizing
the same, although on the other hand there is none that prohibits it.
Certainly there is no article in the Civil Code, or any special law that bars the
transmission to the heirs of a natural child, particularly to his natural mother, of the right
of action to claim the acknowledgment of said natural child from the heirs of his
deceased natural father.
According to the above-cited article 944 of the Civil Code, the only persons
designated to succeed to the intestate estate of a natural child who died during
minority or without issue are its natural father or mother who acknowledged it;
consequently if by operation of the law his parents are his legal successors or heirs, it is
unquestionable that by reason of the childs death the property, rights, and obligations
of the deceased minor were, as a matter of fact, transmitted to them, among which
was the right to demand the acknowledgment of the said deceased natural child from
the heirs of the deceased natural father or mother, respectively, on account of having
enjoyed uninterruptedly the status of natural child of the said deceased parents. (Arts.
135 and 136, Civil Code.) cralaw
At the death of the children, Teopista in 1902, and Jose in 1903, during their minority,
and after the death of their natural father which took place in 1899, the natural mother
of the said minors, Paula Conde, succeeded them in all of their property and rights,
among which must necessarily appear and be included the right of action to claim the
acknowledgment of said two children from the heirs of Icasiano Abaya, their deceased
natural father. There is no legal provision or precept whatever excluding such right from
those which, by operation of the law, were transmitted to the mother, Paula Conde, or
expressly declaring that the said right to claim such acknowledgment is extinguished by
the death of the natural children.
It is true that, as a general rule, an action for acknowledgment cannot be brought by a
surviving natural child after the death of his parents, except in the event that he was a
minor at the time of the death of either of his parents, as was the case with the minors
Teopista and Jose Conde, who, if living, would unquestionably be entitled to institute an
action for acknowledgment against the presumed heirs of their natural father; and as
there is no law that provides that said right is extinguished by the death of the same,
and that the mother did not inherit it from the said minors, it is also unquestionable that
Paula Conde, the natural mother and successor to the rights of said minors, is entitled to
exercise the corresponding action for acknowledgment.
If the natural mother had no right of action against the heirs of the natural father, for
the acknowledgment of her natural child, the unlimited and unconditional reciprocity

established by article 846 of the code would neither be true nor correct. It should be
noticed that the relation of paternity and that of filiation between the abovementioned father and children are both natural in character; therefore, the intestate
succession of the said children of Paula Conde is governed exclusively by articles 944
and 945 of the said code.
It is true that nothing is provided by article 137 with reference to the transmission to the
natural mother of the right to claim the acknowledgment of her natural children, but, as
Sanchez Roman says, it does not expressly prohibit it; and as opposed to the silence of
the said article, we find the provisions of articles 846 and 944 of the Civil code, which
expressly recognized the right of the natural mother to succeed her natural child, a right
which is transmitted to her by operation of law from the moment that the child ceases
to exist.
The question herein does not bear upon the right of a child to claim his legitimacy, as
provided in article 118 of the code, nor is it claimed that the rights of natural children
and of their mother are equal to those of legitimate ones, even by analogy.
The foundations of this opinion are based solely on the provisions of the abovementioned articles of the code, and I consider that they are sustainable so long as it is
not positively proven that the so often-mentioned right of action for acknowledgment is
extinguished by the death of the minor natural child, and is not transmitted to the
natural mother by express declaration or prohibition of the law, together with the
property and other rights in the intestate succession.
In view of the considerations above set forth it is my opinion that it should be
held: chanrobles virtualawlibrary That Paula Conde, as the natural mother and sole heir
of her children Teopista and Jose, was and is entitled to the right to institute
proceedings to obtain the acknowledgment of the latter as natural children of the late
Icasiano Abaya, from Roman Abaya, as heir and administrator of the estate of the said
Icasiano Abaya; and that the said Teopista and Jose who died during their minority,
three years after the death of their father, should be considered and acknowledged as
such natural children of the latter, for the reason that while living they uninterruptedly
enjoyed the status of his natural children. The judgment appealed from should be
affirmed without any special ruling as to costs.
With regard to the declaration that the property of the late Icasiano, which Paula
Conde might take, are of a reservable character, together with the other matter
contained in the third error assigned by the Appellant to the said judgment, the writer
withholds his opinion until such time as the question may be raised between the parties
in proper form.
G.R. No. L-40789 February 27, 1987
INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES, petitioner,
vs.
FORTUNATO ROSALES, MAGNA ROSALES ACEBES, MACIKEQUEROX ROSALES and
ANTONIO ROSALES,respondents.

Jose B. Echaves for petitioner.

Jose A. Binghay and Paul G. Gorres for respondents.

GANCAYCO, J.:
In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the
question raised is whether the widow whose husband predeceased his mother can
inherit from the latter, her mother-in-law.
It appears from the record of the case that on February 26, 1971, Mrs. Petra V. Rosales,
a resident of Cebu City, died intestate. She was survived by her husband Fortunate T.
Rosales and their two (2) children Magna Rosales Acebes and Antonio Rosales. Another
child, Carterio Rosales, predeceased her, leaving behind a child, Macikequerox
Rosales, and his widow Irenea C. Rosales, the herein petitioner. The estate of the
dismissed has an estimated gross value of about Thirty Thousand Pesos (P30,000.00).
On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the settlement
of the estate of the deceased in the Court of First Instance of Cebu. The case was
docketed as Special Proceedings No. 3204-R. Thereafter, the trial court appointed
Magna Rosales Acebes administratrix of the said estate.
In the course of the intestate proceedings, the trial court issued an Order dated June
16, 1972 declaring the following in individuals the legal heirs of the deceased and
prescribing their respective share of the estate
Fortunata T. Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4;
Macikequerox Rosales, 1/4; and Antonio Rosales son, 1/4.
This declaration was reiterated by the trial court in its Order I dated February 4, 1975.
These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in
her capacity as the surviving spouse of the late Carterio Rosales, son of the deceased,
claiming that she is a compulsory heir of her mother-in-law together with her son,
Macikequerox Rosales.
Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders. The trial
court denied her plea. Hence this petition.
In sum, the petitioner poses two (2) questions for Our resolution petition. First is a
widow (surviving spouse) an intestate heir of her mother-in-law? Second are the
Orders of the trial court which excluded the widow from getting a share of the estate in
question final as against the said widow?
Our answer to the first question is in the negative.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by
their own right, and those who inherit by the right of representation. 1 Restated, an
intestate heir can only inherit either by his own right, as in the order of intestate
succession provided for in the Civil Code, 2 or by the right of representation provided for
in Article 981 of the same law. The relevant provisions of the Civil Code are:
Art. 980. The children of the deceased shall always inherit from him in their
own right, dividing the inheritance in equal shares.
Art. 981. Should children of the deceased and descendants of other
children who are dead, survive, the former shall inherit in their own right,
and the latter by right of representation.
Art. 982. The grandchildren and other descendants shag inherit by right of
representation, and if any one of them should have died, leaving several
heirs, the portion pertaining to him shall be divided among the latter in
equal portions.
Art. 999. When the widow or widower survives with legitimate children or
their descendants and illegitimate children or their descendants, whether
legitimate or illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child.
There is no provision in the Civil Code which states that a widow (surviving spouse) is an
intestate heir of her mother-in-law. The entire Code is devoid of any provision which
entitles her to inherit from her mother-in- law either by her own right or by the right of
representation. The provisions of the Code which relate to the order of intestate
succession (Articles 978 to 1014) enumerate with meticulous exactitude the intestate
heirs of a decedent, with the State as the final intestate heir. The conspicuous absence
of a provision which makes a daughter-in-law an intestate heir of the deceased all the
more confirms Our observation. If the legislature intended to make the surviving spouse
an intestate heir of the parent-in-law, it would have so provided in the Code.
Petitioner argues that she is a compulsory heir in accordance with the provisions of
Article 887 of the Civil Code which provides that:
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate
parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with
respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287;

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those
in Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes
mentioned, shall inherit from them in the manner and to the extent
established by this Code.
The aforesaid provision of law 3 refers to the estate of the deceased spouse in which
case the surviving spouse (widow or widower) is a compulsory heir. It does not apply to
the estate of a parent-in-law.
Indeed, the surviving spouse is considered a third person as regards the estate of the
parent-in-law. We had occasion to make this observation in Lachenal v. Salas, 4 to Wit:
We hold that the title to the fishing boat should be determined in Civil
Case No. 3597 (not in the intestate proceeding) because it affects the
lessee thereof, Lope L. Leoncio, the decedent's son-in-law, who, although
married to his daughter or compulsory heir, is nevertheless a third person
with respect to his estate. ... (Emphasis supplied).
By the same token, the provision of Article 999 of the Civil Code aforecited does not
support petitioner's claim. A careful examination of the said Article confirms that the
estate contemplated therein is the estate of the deceased spouse. The estate which is
the subject matter of the intestate estate proceedings in this case is that of the
deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate of
Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by the
right of representation as provided by Article 981 of the Code.
The essence and nature of the right of representation is explained by Articles 970 and
971 of the Civil Code, viz
Art. 970. Representation is a right created by fiction of law, by virtue of
which the representative is raised to the place and the degree of the
person represented, and acquires the rights which the latter would have if
he were living or if he could have inherited.
Art. 971. The representative is called to the succession by the law and not
by the person represented. The representative does not succeed the
person represented but the one whom the person represented would
have succeeded. (Emphasis supplied.)
Article 971 explicitly declares that Macikequerox Rosales is called to succession by law
because of his blood relationship. He does not succeed his father, Carterio Rosales (the

person represented) who predeceased his grandmother, Petra Rosales, but the latter
whom his father would have succeeded. Petitioner cannot assert the same right of
representation as she has no filiation by blood with her mother-in-law.
Petitioner however contends that at the time of the death of her husband Carterio
Rosales he had an inchoate or contingent right to the properties of Petra Rosales as
compulsory heir. Be that as it may, said right of her husband was extinguished by his
death that is why it is their son Macikequerox Rosales who succeeded from Petra
Rosales by right of representation. He did not succeed from his deceased father,
Carterio Rosales.
On the basis of the foregoing observations and conclusions, We find it unnecessary to
pass upon the second question posed by the petitioner.
Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not
an intestate heir of his or her parent-in-law.
WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit,
with costs against the petitioner. Let this case be remanded to the trial-court for further
proceedings.
SO ORDERED.
Yap (Chairman), Narvasa, Melencio-Herrera, Cruz, Feliciano and Sarmiento, JJ., concur
G.R. No. L-47799

June 13, 1941

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET

AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamiz & Capistrano for petitioners.
Gullas, Leuterio, Tanner & Laput for respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six
children named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his
second marriage with Ignacia Akutin, five children named Gracia, Godofredo, Violeta,
Estela Maria, and Emma. Getulia, daughter in the first marriage, died on October 2,
1923, that is, a little less than eight years before the death of said Agripino Neri y
Chavez, and was survived by seven children named Remedios, Encarnacion, Carmen,
Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament, which was admitted to
probate on March 21, 1932, he willed that his children by the first marriage shall have no
longer any participation in his estate, as they had already received their corresponding
shares during his lifetime. At the hearing for the declaration of heirs, the trial court

found, contrary to what the testator had declared in his will, that all his children by the
first and second marriages intestate heirs of the deceased without prejudice to one-half
of the improvements introduced in the properties during the existence of the last
conjugal partnership, which should belong to Ignacia Akutin. The Court of Appeals
affirmed the trial court's decision with the modification that the will was "valid with
respect to the two-thirds part which the testator could freely dispose of. "This judgment
of the Court of Appeals is now sought to be reviewed in this petition forcertiorari.
The decisive question here raised is whether, upon the foregoing facts, the omission of
the children of the first marriage annuls the institution of the children of the first marriage
as sole heirs of the testator, or whether the will may be held valid, at least with respect
to one-third of the estate which the testator may dispose of as legacy and to the other
one-third which he may bequeath as betterment, to said children of the second
marriage.
The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read
in part as follows:
Disinheritance made without a statement of the cause, or for a cause the truth
of which, if contradicted, is not proven, ... shall annul the institution of the heir in
so far as it prejudices the person disinherited; but the legacies, betterments, and
other testamentary dispositions, in so far as they do no encroach upon the
legitime, shall be valid.
The appellate court thus seemed to have rested its judgment upon the impression that
the testator had intended to disinherit, though ineffectively, the children of the first
marriage. There is nothing in the will that supports this conclusion. True, the testator
expressly denied them any share in his estate; but the denial was predicated, not upon
the desire to disinherit, but upon the belief, mistaken though it was, that the children by
the first marriage had already received more than their corresponding shares in his
lifetime in the form of advancement. Such belief conclusively negatives all inference as
to any intention to disinherit, unless his statement to that effect is prove to be
deliberately fictitious, a fact not found by the Court of Appeals. The situation
contemplated in the above provision is one in which the purpose to disinherit is clear,
but upon a cause not stated or not proved, a situation which does not obtain in the
instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas justa del problema que hemos
hecho notar al comentar el articulo, seria distinguir el caso en que el heredero
omitido viviese al otorgarse el testamento, siendo conocida su existencia por el
testador, de aquel en que, o naciese despues, o se ignorase su existencia,
aplicando en el primer caso la doctrina del articulo 851, y en el segundo la del
814. (6 Manresa, 354-355.)

But it must be observed that this opinion is founded on mere principles (en el terreno de
los principios) and not on the express provisions of the law. Manresa himself admits that
according to law, "no existe hoy cuestion alguna en esta materia: la pretericion
produce siempre los mismos efectos, ya se refiera a personas vivas al hacer el
testamento o nacidas despues. Este ultimo grupo solo puede hacer relacion a los
descendientes legitimos, siempre que ademas tengan derecho a legitima." (6
Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of voluntary preterition of
four of the children by the first marriage, and of involuntary preterition of the children by
the deceased Getulia, also of the first marriage, and is thus governed by the provisions
of article 814 of the Civil Code, which read in part as follows:
The preterition of one or all of the forced heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall
void the institution of heir; but the legacies and betterments shall be valid, in so
far as they are not inofficious.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited.(Cf. 6 Manresa, 346.) In the
instant case, while the children of the first marriage were mentioned in the will, they
were not accorded any share in the heriditary property, without expressly being
disinherited. It is, therefore, a clear case of preterition as contended by appellants. The
omission of the forced heirs or anyone of them, whether voluntary or involuntary, is a
preterition if the purpose to disinherit is not expressly made or is not at least manifest.
Except as to "legacies and betterments" which "shall be valid in so far as they are not
inofficious" (art. 814 of the Civil Code), preterition avoids the institution of heirs and gives
rise to intestate succession. (Art. 814, Civil Code; Decisions of the Supreme Court of
Spain of June 17, 1908 and February 27, 1909.) In the instant case, no such legacies or
betterments have been made by the testator. "Mejoras" or betterments must be
expressly provided, according to articles 825 and 828 of the Civil Code, and where no
express provision therefor is made in the will, the law would presume that the testator
had no intention to that effect. (Cf. 6 Manresa, 479.) In the will here in question, no
express betterment is made in favor of the children by the second marriage; neither is
there any legacy expressly made in their behalf consisting of the third available for free
disposal. The whole inheritance is accorded the heirs by the second marriage upon the
mistaken belief that the heirs by the first marriage have already received their shares.
Were it not for this mistake, the testator's intention, as may be clearly inferred from his
will, would have been to divide his property equally among all his children.
Judgment of the Court of Appeals is reversed and that of the trial court affirmed,
without prejudice to the widow's legal usufruct, with costs against respondents.
Avancea, C.J., Diaz, Laurel and Horrilleno, JJ., concur