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.

No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE
BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE
BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de
Borja, appellant. .
G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA,

special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de
Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendantappellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

REYES, J.B.L., J.:p

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de Borja,
special administratrix of the testate estate of Francisco de Borja, 1 from the approval of a compromise
agreement by the Court of First Instance of Rizal, Branch I, in its Special Proceeding No. R-7866, entitled,
"Testate Estate of Josefa Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same
compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special
Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de Borja,
Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of
First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala
Poblacion, which is the main object of the aforesaid compromise agreement, as the separate and
exclusive property of the late Francisco de Borja and not a conjugal asset of the community with his
first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is
under administrator in Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija,
Branch II.
It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October
1940, filed a petition for the probate of her will which was docketed as Special Proceeding No. R7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946,
Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was
appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the sole
administrator of the testate estate of his mother, Josefa Tangco. While a widower Francisco de Borja
allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana
instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was
appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in
said proceeding.
The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued
with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases
remain pending determination in the courts. The testate estate of Josefa Tangco alone has been
unsettled for more than a quarter of a century. In order to put an end to all these litigations, a
compromise agreement was entered into on 12 October 1963, 2 by and between "[T]he heir and son of
Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The
terms and conditions of the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja
personally and as administrator of the Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein terminate and settle, with finality,
the various court litigations, controversies, claims, counterclaims, etc., between them
in connection with the administration, settlement, partition, adjudication and
distribution of the assets as well as liabilities of the estates of Francisco de Borja and
Josefa Tangco, first spouse of Francisco de Borja.

THAT with this end in view, the parties herein have agreed voluntarily and without
any reservations to enter into and execute this agreement under the following terms
and conditions:
1. That the parties agree to sell the Poblacion portion of the Jalajala properties
situated in Jalajala, Rizal, presently under administration in the Testate Estate of
Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as follows:
Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del
Municipio de Pililla de la Provincia de Rizal, y con el pico del Monte
Zambrano; al Oeste con Laguna de Bay; por el Sur con los
herederos de Marcelo de Borja; y por el Este con los terrenos de la
Familia Maronilla
with a segregated area of approximately 1,313 hectares at the amount of P0.30 per
square meter.
2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda.
de de Borja the total amount of Eight Hundred Thousand Pesos (P800,000)
Philippine Currency, in cash, which represent P200,000 as his share in the payment
and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all
surnamed de Borja and this shall be considered as full and complete payment and
settlement of her hereditary share in the estate of the late Francisco de Borja as well
as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No.
7866-Rizal, respectively, and to any properties bequeathed or devised in her favor by
the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for consideration or otherwise. The
funds for this payment shall be taken from and shall depend upon the receipt of full
payment of the proceeds of the sale of Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that
particular obligation incurred by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now Development Bank of the Philippines,
amounting to approximately P30,000.00 and also assumes payment of her 1/5 share
of the Estate and Inheritance taxes on the Estate of the late Francisco de Borja or
the sum of P3,500.00, more or less, which shall be deducted by the buyer of Jalajala,
"Poblacion" from the payment to be made to Tasiana Ongsingco Vda. de Borja under
paragraph 2 of this Agreement and paid directly to the Development Bank of the
Philippines and the heirs-children of Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to
Tasiana Ongsingco Vda. de de Borja the balance of the payment due her under
paragraph 2 of this Agreement (approximately P766,500.00) and issue in the name
of Tasiana Ongsingco Vda. de de Borja, corresponding certified checks/treasury
warrants, who, in turn, will issue the corresponding receipt to Jose de Borja.
5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose
de Borja personally and as administrator of the Testate Estate of Josefa Tangco, and
Tasiana Ongsingco Vda. de de Borja, for themselves and for their heirs, successors,

executors, administrators, and assigns, hereby forever mutually renounce, withdraw,

waive, remise, release and discharge any and all manner of action or actions, cause
or causes of action, suits, debts, sum or sums of money, accounts, damages, claims
and demands whatsoever, in law or in equity, which they ever had, or now have or
may have against each other, more specifically Sp. Proceedings Nos. 7866 and
1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI
Nueva Ecija and Civil Case No. 7452-CFI, Rizal, as well as the case filed against
Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to
completely, absolutely and finally release each other, their heirs, successors, and
assigns, from any and all liability, arising wholly or partially, directly or indirectly, from
the administration, settlement, and distribution of the assets as well as liabilities of
the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de
Borja, and lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically
renounce absolutely her rights as heir over any hereditary share in the estate of
Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under
paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles and
documents belonging to Francisco de Borja which are in her possession and said
heir Jose de Borja shall issue in turn the corresponding receive thereof.
7. That this agreement shall take effect only upon the fulfillment of the sale of the
properties mentioned under paragraph 1 of this agreement and upon receipt of the
total and full payment of the proceeds of the sale of the Jalajala property "Poblacion",
otherwise, the non-fulfillment of the said sale will render this instrument NULL AND
VOID AND WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City
of Manila, Philippines, the 12th of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to
the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966,
to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco
Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement,
but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana
Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R.
case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case
No. L-28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised agreement of 12 October 1963 is not
disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the
heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja;
(2) that the same involves a compromise on the validity of the marriage between Francisco de Borja
and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate
Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the
Court's majority held the view that the presentation of a will for probate is mandatory and that the
settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is

against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that
Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial
settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the
decedent left no will and no debts, and the heirs are all of age, or the minors are represented by their
judicial and legal representatives ..." The will of Francisco de Borja having been submitted to the
Nueva Ecija Court and still pending probate when the 1963 agreement was made, those
circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses
that at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule
74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a
deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion
of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the
parties have already divided the estate in accordance with a decedent's will, the probate of the will is
a useless ceremony; and if they have divided the estate in a different manner, the probate of the will
is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from
an examination of the terms of the agreement between Jose de Borja and Tasiana Ongsingco.
Paragraph 2 of said agreement specifically stipulates that the sum of P800,000 payable to Tasiana
Ongsingco
shall be considered as full complete payment settlement of her hereditary
share in the estate of the late Francisco de Borja as well as the estate of Josefa
Tangco, ... and to any properties bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for consideration or otherwise.
This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the
cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja
among the heirs thereto before the probate of his will. The clear object of the contract was merely
the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or
eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any
other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is transmitted or
vested immediately from the moment of the death of such causante or predecessor in interest (Civil
Code of the Philippines, Art. 777) 3 there is no legal bar to a successor (with requisite contracting
capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent
of such share is not determined until the subsequent liquidation of the estate. 4 Of course, the effect of
such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the
aleatory character of the contract does not affect the validity of the transaction; neither does the
coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal
Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be
dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of
suits.
It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja,
Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code.
Wherefore, barring unworthiness or valid disinheritance, her successional interest existed

independent of Francisco de Borja's last will and testament and would exist even if such will were
not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the
Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja.
Since the compromise contract Annex A was entered into by and between "Jose de Borja personally
and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the
heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de
de Borja", it is clear that the transaction was binding on both in their individual capacities, upon the
perfection of the contract, even without previous authority of the Court to enter into the same. The
only difference between an extrajudicial compromise and one that is submitted and approved by the
Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil Code is
explicit on the point:
8. Art. 2037. A compromise has upon the parties the effect and authority of res
judicata; but there shall be no execution except in compliance with a judicial
compromise.
It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no
definite period for its performance, the same was intended to have a resolutory
period of 60 days for its effectiveness. In support of such contention, it is averred that
such a limit was expressly stipulated in an agreement in similar terms entered into by
said Ongsingco with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde
and Cayetano, all surnamed de Borja, except that the consideration was fixed at
P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and which
contained the following clause:
III. That this agreement shall take effect only upon the consummation of the sale of
the property mentioned herein and upon receipt of the total and full payment of the
proceeds of the sale by the herein owner heirs-children of Francisco de Borja,
namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided that if no
sale of the said property mentioned herein is consummated, or the non-receipt of the
purchase price thereof by the said owners within the period of sixty (60) days from
the date hereof, this agreement will become null and void and of no further effect.
Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this
particular contract (Annex 1), and that the same appears not to have been finalized, since it bears no
date, the day being left blank "this day of October 1963"; and while signed by the parties, it was
not notarized, although plainly intended to be so done, since it carries a proposed notarial ratification
clause. Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2
heretofore transcribed that of the total consideration of P800, 000 to be paid to Ongsingco, P600,000
represent the "prorata share of the heirs Crisanto, Cayetano and Matilde all surnamed de Borja"
which corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is
proof that the duly notarized contract entered into wit Jose de Borja under date 12 October 1963
(Annex A), was designed to absorb and supersede the separate unformalize agreement with the
other three Borja heirs. Hence, the 60 days resolutory term in the contract with the latter (Annex 1)
not being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made
within sixty days from the date of the agreement with Jose de Borja's co-heirs (Annex 1) was plainly
omitted in Annex A as improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was

to be sold to raise the P800,000 to be paid to Ongsingco for her share formed part of the estate of
Francisco de Borja and could not be sold until authorized by the Probate Court. The Court of First
Instance of Rizal so understood it, and in approving the compromise it fixed a term of 120 days
counted from the finality of the order now under appeal, for the carrying out by the parties for the
terms of the contract.
This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the
compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate
of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja,
whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva
Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her
eventual share in the estate of her late husband, not the estate itself; and as already shown, that
eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not
bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of
whomsoever she chose. Such alienation is expressly recognized and provided for by article 1088 of
the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser
by reimbursing him for the price of the sale, provided they do so within the period of
one month from the time they were notified in writing of the sale of the vendor.
If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could
not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it
amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point
is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A")
describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is
nothing in the text of the agreement that would show that this recognition of Ongsingco's status as
the surviving spouse of Francisco de Borja was only made in consideration of the cession of her
hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija
in its order of 21 September 1964, in Special Proceedings No. 832 (Amended Record on Appeal in
L-28568, page 157), that the compromise agreement of 13 October 1963 (Annex "A") had been
abandoned, as shown by the fact that, after its execution, the Court of First Instance of Nueva Ecija,
in its order of 21 September 1964, had declared that "no amicable settlement had been arrived at by
the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had stated that the
proposed amicable settlement "had failed to materialize".
It is difficult to believe, however, that the amicable settlement referred to in the order and motion
above-mentioned was the compromise agreement of 13 October 1963, which already had been
formally signed and executed by the parties and duly notarized. What the record discloses is that
some time after its formalization, Ongsingco had unilaterally attempted to back out from the
compromise agreement, pleading various reasons restated in the opposition to the Court's approval
of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse
of the allegedly intended resolutory period of 60 days and because the contract was not preceded by

the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that
Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de
Borja, etc., all of which objections have been already discussed. It was natural that in view of the
widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement
before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately
entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is
apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief
for appellant Ongsingco in G.R. No. 28040; and it is more than probable that the order of 21
September 1964 and the motion of 17 June 1964 referred to the failure of the parties' quest for a
more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the
original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order
for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore
described, decreed that the agreement be ultimately performed within 120 days from the finality of
the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order
should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should
be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her
unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the
value of the Jalajala property has increased. But the fact is that her delay in receiving the payment of
the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement
(Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And
as to the devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30
June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a revaluation with
every subsequent fluctuation in the values of currency and properties of the estate", is particularly
opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion),
concededly acquired by Francisco de Borja during his marriage to his first wife, Josefa Tangco, is the
husband's private property (as contended by his second spouse, Tasiana Ongsingco), or whether it
forms part of the conjugal (ganancial) partnership with Josefa Tangco. The Court of First Instance of
Rizal (Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome
the presumption in favor of its conjugal character established by Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has
become moot and academic, in view of the conclusion reached by this Court in the two preceding
cases (G.R. No. L-28568), upholding as valid the cession of Tasiana Ongsingco's eventual share in
the estate of her late husband, Francisco de Borja, for the sum of P800,000 with the accompanying
reciprocal quit-claims between the parties. But as the question may affect the rights of possible
creditors and legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired
jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their title thereto was duly
registered in their names as co-owners in Land Registration Case No. 528 of the province of Rizal,
G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda
was partitioned among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong

section to Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco
de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).
The lot allotted to Francisco was described as
Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena
Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of
13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal, pages 7
and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of
Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 7452)
against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first
wife), seeking to have the Hacienda above described declared exclusive private property of
Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal
property of his parents (Francisco de Borja and Josefa Tangco), conformably to the presumption
established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of
1889), to the effect that:
Art. 160. All property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband or to the
wife.
Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary,
as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had
adduced sufficient evidence to rebut the presumption, and declared the Hacienda de Jalajala
(Poblacion) to be the exclusive private property of the late Francisco de Borja, and his Administratrix,
Tasiana Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de Borja then
appealed to this Court.
The evidence reveals, and the appealed order admits, that the character of the Hacienda in question
as owned by the conjugal partnership De Borja-Tangco was solemnly admitted by the late Francisco
de Borja no less than two times: first, in the Reamended Inventory that, as executor of the estate of
his deceased wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of First
Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the
same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda.
de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated 7
September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal Properties of the
Spouses Francisco de Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as
administratrix of the Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of
First Instance of Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed
the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de
Borja and Josefa Tangco, which are in the possession of the Administrator of the Testate Estate of
the Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court of First Instance of Rizal"
(Exhibit "4").

Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against
interest made by both Francisco de Borja and the Administratrix of his estate, in the course of judicial
proceedings in the Rizal and Nueva Ecija Courts, supporting the legal presumption in favor of the
conjugal community, the Court below declared that the Hacienda de Jalajala (Poblacion) was not
conjugal property, but the private exclusive property of the late Francisco de Borja. It did so on the
strength of the following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951
(Exhibit "F") that
He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte,
337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala,
Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had
been bought at a foreclosure sale for P40,100.00, of which amount P25,100 was contributed by
Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a subsequent demand
from the provincial treasurer for realty taxes the sum of P17,000, Marcelo told his brother Bernardo
that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the
proposal, Marcelo issue a check for P17,000.00 to pay the back taxes and said that the amount
would represent Francisco's contribution in the purchase of the Hacienda. The witness further
testified that
Marcelo de Borja said that that money was entrusted to him by Francisco de
Borja when he was still a bachelor and which he derived from his business
transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions
in the inventories relied upon by defendant-appellant Jose de Borja since probate courts can not
finally determine questions of ownership of inventoried property, but that the testimony of Gregorio
de Borja showed that Francisco de Borja acquired his share of the original Hacienda with his private
funds, for which reason that share can not be regarded as conjugal partnership property, but as
exclusive property of the buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4)
of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of the wife or of the husband.
We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de
Borja's testimony as to the source of the money paid by Francisco for his share was plain hearsay,
hence inadmissible and of no probative value, since he was merely repeating what Marcelo de Borja
had told him (Gregorio). There is no way of ascertaining the truth of the statement, since both
Marcelo and Francisco de Borja were already dead when Gregorio testified. In addition, the
statement itself is improbable, since there was no need or occasion for Marcelo de Borja to explain
to Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A
ring of artificiality is clearly discernible in this portion of Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not
clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers
precisely to the Hacienda in question. The inventories (Exhibits 3 and 4) disclose that there were two
real properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600,
and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala
(Poblacion). To which of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In
addition, Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly selfserving, and not admissible in the absence of cross examination.
It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7")
are not conclusive on the conjugal character of the property in question; but as already noted, they
are clear admissions against the pecuniary interest of the declarants, Francisco de Borja and his
executor-widow, Tasiana Ongsingco, and as such of much greater probative weight than the selfserving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal
character of the Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually
confirmed by proof. Hence, the appealed order should be reversed and the Hacienda de Jalajala
(Poblacion) declared property of the conjugal partnership of Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower court that claims for damages should
be ventilated in the corresponding special proceedings for the settlement of the estates of the
deceased, the same requires no pro announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case
No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-28568 and L-28611 are
reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja in all three (3)
cases.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and
Esguerra, JJ., concur.
Fernando, J., took no part.

Footnotes
1 She died during the pendency of these appeals, being substituted by Atty. Luis
Panaguiton Jr., administrator of the estate (S.C. Resolution, 27 February 1970).
2 Annex A, Record on Appeal, G.R. No. L-28040, pp. 16-21.
3 Also: Osorio vs. Osorio Steamship Co., 41 Phil. 531; Baun vs. Heirs of Baun, 53
Phil. 654; Barretto vs. Tuason, 59 Phil. 845; Cuevas vs. Abesamis, 71 Phil. 147;
Jayme vs. Gamboa, 75 Phil. 479; Iballe vs. Po.
4 Garcia vs. David, 67 Phil. 279; Jakosalem vs. Rafols, 73 Phil. 628.

G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their
father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA,
AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court
of First Instance of Abra,respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.

MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No. 856,
entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for reconsideration of its order
dismissing the complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and
wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title
over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of
the motion to dismiss, the counsel for the plaintiff moved to amend the complaint in order to include
certain allegations therein. The motion to amend the complaint was granted and on July 17, 1975,
plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that
Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to dismiss was
heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata
Barcena, and asked for substitution by her minor children and her husband, the petitioners herein;
but the court after the hearing immediately dismissed the case on the ground that a dead person
cannot be a real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the complaint
and on August 23, 1975, he moved to set aside the order of the dismissal pursuant to Sections 16
and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff
for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written manifestation
praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased
mother, but the court denied the counsel's prayer for lack of merit. From the order, counsel for the
deceased plaintiff filed a second motion for reconsideration of the order dismissing the complaint
claiming that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the
same was denied.

Hence, this petition for review.

The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil
Case No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While
it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in
pursuing the case up to its completion. The records of this case show that the death of Fortunata
Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means
that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her person. If thereafter she died, the Rules of
Court prescribes the procedure whereby a party who died during the pendency of the proceeding
can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a party to a pending
case dies ... it shall be the duty of his attorney to inform the court promptly of such death ... and to
give the name and residence of his executor, administrator, guardian or other legal representatives."
This duty was complied with by the counsel for the deceased plaintiff when he manifested before the
respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution
of parties in the case. The respondent Court, however, instead of allowing the substitution,
dismissed the complaint on the ground that a dead person has no legal personality to sue. This is a
grave error. Article 777 of the Civil Code provides "that the rights to the succession are transmitted
from the moment of the death of the decedent." From the moment of the death of the decedent, the
heirs become the absolute owners of his property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto except by the methods provided for by
law. 3 The moment of death is the determining factor when the heirs acquire a definite right to the
inheritance whether such right be pure or contingent. 4 The right of the heirs to the property of the
deceased vests in them even before judicial declaration of their being heirs in the testate or intestate
proceedings. 5 When Fortunata Barcena, therefore, died her claim or right to the parcels of land in
litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon
her death. Her heirs have thus acquired interest in the properties in litigation and became parties in
interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution
as parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the deceased to
appear and be substituted for the deceased, within such time as may be granted ... ." The question
as to whether an action survives or not depends on the nature of the action and the damage sued
for. 6 In the causes of action which survive the wrong complained affects primarily and principally property
and property rights, the injuries to the person being merely incidental, while in the causes of action which
do not survive the injury complained of is to the person, the property and rights of property affected being
incidental. 7 Following the foregoing criterion the claim of the deceased plaintiff which is an action to quiet
title over the parcels of land in litigation affects primarily and principally property and property rights and
therefore is one that survives even after her death. It is, therefore, the duty of the respondent Court to
order the legal representative of the deceased plaintiff to appear and to be substituted for her. But what
the respondent Court did, upon being informed by the counsel for the deceased plaintiff that the latter was
dead, was to dismiss the complaint. This should not have been done for under the same Section 17, Rule
3 of the Rules of Court, it is even the duty of the court, if the legal representative fails to appear, to order
the opposing party to procure the appointment of a legal representative of the deceased. In the instant
case the respondent Court did not have to bother ordering the opposing party to procure the appointment
of a legal representative of the deceased because her counsel has not only asked that the minor children
be substituted for her but also suggested that their uncle be appointed as guardian ad litem for them
because their father is busy in Manila earning a living for the family. But the respondent Court refused the
request for substitution on the ground that the children were still minors and cannot sue in court. This is
another grave error because the respondent Court ought to have known that under the same Section 17,
Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs.
Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the respondent Court
that the uncle of the minors be appointed to act as guardian ad litem for them. Unquestionably, the

respondent Court has gravely abused its discretion in not complying with the clear provision of the Rules
of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of
parties in the case.

IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil
Case No. 856 of the Court of First Instance of Abra and the motions for reconsideration of the order
of dismissal of said complaint are set aside and the respondent Court is hereby directed to allow the
substitution of the minor children, who are the petitioners therein for the deceased plaintiff and to
appoint a qualified person as guardian ad litem for them. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.
Footnotes

1 Which this Court treats as special civil action as per its Resolution dated February
11, 1976.
2 Section 16. Duty of Attorney upon which death, incapacity or incompetency of
party. - Whenever a party to a pending case dies, becomes incapacitated or
incompetent, it shall be the duty of his attorney to inform the court promptly of such
death, incapacity or incompetency, and to give the name and residence of his
executor, administrator, guardian or other legal representative.
Section 17. Death of party.After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the
deceased to appear and to be substituted for deceased, within a period of thirty (30)
days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the within a time to be specified by the court,
and the representative shall immediately appear for and on behalf of the interest of
the deceased. The court charges involved in procuring such appointment, if defrayed
by the opposing party, may be recovered as costs. The heirs of the deceased may be
allowed to be substituted for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint guardian ad litemfor the minor
heirs.

G.R. No. L-41171

July 23, 1987

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEOHERRERA, petitioner,

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

July 23, 1987

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

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

July 23, 1987

JOSE CUENCO BORROMEO, petitioner,

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

July 23, 1987

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

VITO BORROMEO, Sp. Proceedings No. 916-R, Regional Trial Court of Cebu, joined by HON.
JUDGE FRANCISCO P. BURGOS, as Presiding Judge of Branch XV of the Regional Trial Court
of Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and NUMERIANO
ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO BORROMEO, and PETRA
O. BORROMEO, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-65995

July 23, 1987

PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and JOSE CUENCO

BORROMEO,petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV, Regional Trial Court of
Cebu; RICARDO V. REYES, Administrator of the Estate of VITO BORROMEO in Sp. Proc. No.
916-R; and DOMINGO L. ANTIGUA, respondents.
GUTIERREZ, JR., J.:
These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First Instance of
Cebu.
G.R. No. 41171

Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in
Paranaque, Rizal at the age of 88 years, without forced heirs but leaving extensive properties in the
province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the
probate of a one page document as the last will and testament left by the said deceased, devising all
his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided
shares, and designating Junquera as executor thereof. The case was docketed as Special
Proceedings No. 916-R. The document, drafted in Spanish, was allegedly signed and thumbmarked
by the deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo
who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate court
held that the document presented as the will of the deceased was a forgery.
On appeal to this Court, the decision of the probate court disallowing the probate of the will was
affirmed in Testate Estate of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et al. (19
SCRA 656).
The testate proceedings was converted into an intestate proceedings. Several parties came before
the court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a petition
for declaration of heirs and determination of heirship. There was no opposition filed against
said petition.
2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as heir.
The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to this petition.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon Ocampo,
Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora Morre, Lila Morre,
Lamberto Morre, and Patricia Morre, filed a petition for declaration of heirs and determination
of shares. The petition was opposed by the heirs of Jose and Cosme Borromeo.
4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda Borromeo
Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim. Jose Cuenco
Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of Carlos Borromeo
represented by Jose Talam filed oppositions to this claim.
When the aforementioned petitions and claims were heard jointly, the following facts were
established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having predeceased the
former), were survived by their eight (8) children, namely,

Jose Ma. Borromeo

Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his brothers and
sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the following children:
a. Ismaela Borromeo,who died on Oct. 16, 1939
b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito Borromeo.
He was married to Remedios Cuenco Borromeo, who died on March 28, 1968. He had an
only son-Atty. Jose Cuenco Borromeo one of the petitioners herein.
c. Crispin Borromeo, who is still alive.
4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left an only daughter, Aurora B.
Ocampo, who died on Jan. 30, 1950 leaving the following children:
a. Anecita Ocampo Castro
b. Ramon Ocampo
c. Lourdes Ocampo
d. Elena Ocampo, all living, and
e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.
5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left the following
children:
a. Marcial Borromeo

b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife, Remedios Alfonso, and
his only daughter, Amelinda Borromeo Talam
c. Asuncion Borromeo
d. Florentina Borromeo, who died in 1948.
e. Amilio Borromeo, who died in 1944.
f. Carmen Borromeo, who died in 1925.
The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and left the following
children:
a. Exequiel Borromeo,who died on December 29, 1949
b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:
aa. Federico Borromeo
bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)
cc. Canuto Borromeo, Jr.
dd. Jose Borromeo
ee. Consuelo Borromeo
ff. Pilar Borromeo
gg. Salud Borromeo
hh. Patrocinio Borromeo Herrera
c. Maximo Borromeo, who died in July, 1948
d. Matilde Borromeo, who died on Aug. 6, 1946
e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:
aa. Maria Borromeo Atega
bb. Luz Borromeo
cc. Hermenegilda Borromeo Nonnenkamp

dd. Rosario Borromeo

ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring the
following, to the exclusion of all others, as the intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera
5. Salud Borromeo
6. Asuncion Borromeo
7. Marcial Borromeo
8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided into
4/9 and 5/9 groups and distributed in equal and equitable shares among the 9 abovenamed declared
intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed an
agreement of partition of the properties of the deceased Vito Borromeo which was approved by the
trial court, in its order of August 15, 1969. In this same order, the trial court ordered the administrator,
Atty Jesus Gaboya, Jr., to partition the properties of the deceased in the way and manner they are
divided and partitioned in the said Agreement of Partition and further ordered that 40% of the market
value of the 4/9 and 5/9 of the estate shall be segregated. All attorney's fees shall be taken and paid
from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as heir under the
forged will, filed a motion before the trial court praying that he be declared as one of the heirs of the
deceased Vito Borromeo, alleging that he is an illegitimate son of the deceased and that in the
declaration of heirs made by the trial court, he was omitted, in disregard of the law making him a
forced heir entitled to receive a legitime like all other forced heirs. As an acknowledged illegitimate
child, he stated that he was entitled to a legitime equal in every case to four-fifths of the legitime of
an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was already barred by the order of the court dated
April 12, 1969 declaring the persons named therein as the legal heirs of the deceased Vito
Borromeo, the court dismissed the motion on June 25, 1973.

Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to support
his motion for reconsideration, Fortunato changed the basis for his claim to a portion of the estate.
He asserted and incorporated a Waiver of Hereditary Rights dated July 31, 1967, supposedly signed
by Pilar N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo,
Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam In the waiver, five of the nine heirs
relinquished to Fortunato their shares in the disputed estate. The motion was opposed on the ground
that the trial court, acting as a probate court, had no jurisdiction to take cognizance of the claim; that
respondent Fortunato Borromeo is estopped from asserting the waiver agreement; that the waiver
agreement is void as it was executed before the declaration of heirs; that the same is void having
been executed before the distribution of the estate and before the acceptance of the inheritance; and
that it is void ab initio and inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding that the five declared heirs who
signed the waiver agreement assigning their hereditary rights to Fortunato Borromeo had lost the
same rights, declared the latter as entitled to 5/9 of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.
In the present petition, the petitioner seeks to annul and set aside the trial court's order dated
December 24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of the estate of Vito
Borromeo and the July 7, 1975 order, denying the motion for reconsideration.
The petitioner argues that the trial court had no jurisdiction to take cognizance of the claim of
respondent Fortunato Borromeo because it is not a money claim against the decedent but a claim
for properties, real and personal, which constitute all of the shares of the heirs in the decedent's
estate, heirs who allegedly waived their rights in his favor. The claim of the private respondent under
the waiver agreement, according to the petitioner, may be likened to that of a creditor of the heirs
which is improper. He alleges that the claim of the private respondent under the waiver agreement
was filed beyond the time allowed for filing of claims as it was filed only sometime in 1973, after
there had been a declaration of heirs (April 10, 1969), an agreement of partition (April 30, 1969), the
approval of the agreement of partition and an order directing the administrator to partition the estate
(August 15, 1969), when in a mere memorandum, the existence of the waiver agreement was
brought out.
It is further argued by the petitioner that the document entitled " waiver of Hereditary Rights"
executed on July 31, 1967, aside from having been cancelled and revoked on June 29, 1968, by
Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo, is without force and effect because
there can be no effective waiver of hereditary rights before there has been a valid acceptance of the
inheritance the heirs intend to transfer. Pursuant to Article 1043 of the Civil Code, to make
acceptance or repudiation of inheritance valid, the person must be certain of the death of the one
from whom he is to inherit and of his right to the inheritance. Since the petitioner and her co-heirs
were not certain of their right to the inheritance until they were declared heirs, their rights were,
therefore, uncertain. This view, according to the petitioner, is also supported by Article 1057 of the
same Code which directs heirs, devicees, and legatees to signify their acceptance or repudiation
within thirty days after the court has issued an order for the distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the Civil
Code there is no need for a person to be first declared as heir before he can accept or repudiate an

inheritance. What is required is that he must first be certain of the death of the person from whom he
is to inherit and that he must be certain of his right to the inheritance. He points out that at the time of
the signing of the waiver document on July 31, 1967, the signatories to the waiver document were
certain that Vito Borromeo was already dead as well as of their rights to the inheritance as shown in
the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass upon the validity of the waiver of
hereditary rights, respondent Borromeo asserts that since the waiver or renunciation of hereditary
rights took place after the court assumed jurisdiction over the properties of the estate it partakes of
the nature of a partition of the properties of the estate needing approval of the court because it was
executed in the course of the proceedings. lie further maintains that the probate court loses
jurisdiction of the estate only after the payment of all the debts of the estate and the remaining estate
is distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in an
existing inheritance cannot be considered as belonging to third persons with respect to the heirs,
who by fiction of law continue the personality of the former. Nor do such properties have the
character of future property, because the heirs acquire a right to succession from the moment of the
death of the deceased, by principle established in article 657 and applied by article 661 of the Civil
Code, according to which the heirs succeed the deceased by the mere fact of death. More or less,
time may elapse from the moment of the death of the deceased until the heirs enter into possession
of the hereditary property, but the acceptance in any event retroacts to the moment of the death, in
accordance with article 989 of the Civil Code. The right is vested, although conditioned upon the
adjudication of the corresponding hereditary portion." (Osorio v. Osorio and Ynchausti Steamship
Co., 41 Phil., 531). The heirs, therefore, could waive their hereditary rights in 1967 even if the order
to partition the estate was issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be
effective. For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an intention to relinquish such right. (People v. Salvador,
(CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must be shown
clearly and convincingly, and when the only proof of intention rests in what a party does, his act
should be so manifestly consistent with, and indicative of an intent to, voluntarily relinquish the
particular right or advantage that no other reasonable explanation of his conduct is possible (67 C.J.,
311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the waiver document did not have the
clear and convincing intention to relinquish their rights, Thus: (1) On October 27, 1967. Fortunato,
Tomas, and Amelia Borromeo filed a pleading entitled "Compliance" wherein they submitted a
proposal for the amicable settlement of the case. In that Compliance, they proposed to concede to
all the eight (8) intestate heirs of Vito Borromeo all properties, personal and real, including all cash
and sums of money in the hands of the Special Administrator, as of October 31, 1967, not contested
or claimed by them in any action then pending in the Court of First Instance of Cebu. In turn, the
heirs would waive and concede to them all the 14 contested lots. In this document, the respondent
recognizes and concedes that the petitioner, like the other signatories to the waiver document, is an
heir of the deceased Vito Borromeo, entitled to share in the estate. This shows that the "Waiver of
Hereditary Rights" was never meant to be what the respondent now purports it to be. Had the intent
been otherwise, there would not be any reason for Fortunato, Tomas, and Amelia Borromeo to
mention the heirs in the offer to settle the case amicably, and offer to concede to them parts of the

estate of the deceased; (2) On April 21 and 30, 1969, the majority of the declared heirs executed an
Agreement on how the estate they inherited shall be distributed. This Agreement of Partition was
approved by the trial court on August 15, 1969; (3) On June 29, 1968, the petitioner, among others,
signed a document entitled Deed of Assignment" purporting to transfer and assign in favor of the
respondent and Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights, interests, and
participation as an intestate heir in the estate of the deceased Vito Borromeo. The stated
consideration for said assignment was P100,000.00; (4) On the same date, June 29, 1968, the
respondent Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment) in
turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in the same deed of
assignment. The stated consideration was P50,000.00; (5) A Cancellation of Deed of Assignment
and Deed of Reconveyance was signed by Tomas Borromeo and Amelia Borromeo on October 15,
1968, while Fortunato Borromeo signed this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction to pass upon the
validity of the waiver agreement. It must be noted that in Special Proceedings No. 916-R the lower
court disallowed the probate of the will and declared it as fake. Upon appeal, this Court affirmed the
decision of the lower court on March 30, 1967, in G.R. No. L-18498. Subsequently, several parties
came before the lower court filing claims or petitions alleging themselves as heirs of the intestate
estate of Vito Borromeo. We see no impediment to the trial court in exercising jurisdiction and trying
the said claims or petitions. Moreover, the jurisdiction of the trial court extends to matters incidental
and collateral to the exercise of its recognized powers in handling the settlement of the estate.
In view of the foregoing, the questioned order of the trial court dated December 24, 1974, is hereby
SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order of the Court of First
Instance of Cebu, Branch 11, dated December 24, 1974, declaring the waiver document earlier
discussed in G.R. No. 41171 valid. The appellate court certified this case to this Court as the
questions raised are all of law.
The appellants not only assail the validity of the waiver agreement but they also question the
jurisdiction of the lower court to hear and decide the action filed by claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary right was executed on July 31, 1967, Pilar
Borromeo and her children did not yet possess or own any hereditary right in the intestate estate of
the deceased Vito Borromeo because said hereditary right was only acquired and owned by them on
April 10, 1969, when the estate was ordered distributed.
They further argue that in contemplation of law, there is no such contract of waiver of hereditary right
in the present case because there was no object, which is hereditary right, that could be the subject
matter of said waiver, and, therefore, said waiver of hereditary right was not only null and void ab
initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that without any formal pleading filed
by the lawyers of Fortunato Borromeo for the approval of the waiver agreement and without notice to
the parties concerned, two things which are necessary so that the lower court would be vested with
authority and jurisdiction to hear and decide the validity of said waiver agreement, nevertheless, the

lower court set the hearing on September 25, 1973 and without asking for the requisite pleading.
This resulted in the issuance of the appealed order of December 24, 1974, which approved the
validity of the waiver agreement. The appellants contend that this constitutes an error in the exercise
of jurisdiction.
The appellee on the other hand, maintains that by waiving their hereditary rights in favor of Fortunato
Borromeo, the signatories to the waiver document tacitly and irrevocably accepted the inheritance
and by virtue of the same act, they lost their rights because the rights from that moment on became
vested in Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil Code there is no need for a
person to be declared as heir first before he can accept or repudiate an inheritance. What is required
is that he is certain of the death of the person from whom he is to inherit, and of his right to the
inheritance. At the time of the signing of the waiver document on July 31, 1967, the signatories to the
waiver document were certain that Vito Borromeo was already dead and they were also certain of
their right to the inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not acquire jurisdiction over the claim
because of the alleged lack of a pleading invoking its jurisdiction to decide the claim, the appellee
asserts that on August 23, 1973, the lower court issued an order specifically calling on all oppositors
to the waiver document to submit their comments within ten days from notice and setting the same
for hearing on September 25, 1973. The appellee also avers that the claim as to a 5/9 share in the
inheritance involves no question of title to property and, therefore, the probate court can decide the
question.
The issues in this case are similar to the issues raised in G.R. No. 41171. The appellants in this
case, who are all declared heirs of the late Vito Borromeo are contesting the validity of the trial
court's order dated December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the estate of
Vito Borromeo under the waiver agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be validated. The
essential elements of a waiver, especially the clear and convincing intention to relinquish hereditary
rights, are not found in this case.
The October 27, 1967 proposal for an amicable settlement conceding to all the eight (8) intestate
heirs various properties in consideration for the heirs giving to the respondent and to Tomas, and
Amelia Borromeo the fourteen (14) contested lots was filed inspite of the fact that on July 31, 1967,
some of the heirs had allegedly already waived or sold their hereditary rights to the respondent.
The agreement on how the estate is to be distributed, the June 29, 1968 deed of assignment, the
deed of reconveyance, and the subsequent cancellation of the deed of assignment and deed of
reconveyance all argue against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that the trial court
acquired jurisdiction to pass upon the validity of the waiver agreement because the trial court's
jurisdiction extends to matters incidental and collateral to the exercise of its recognized powers in
handling the settlement of the estate.
The questioned order is, therefore, SET ASIDE.

G.R. No. 62895

A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative of some of the
heirs-distributees, praying for the immediate closure of Special Proceeding No. 916-R. A similar
motion dated May 29, 1979 was filed by Atty. Jose Amadora. Both motions were grounded on the
fact that there was nothing more to be done after the payment of all the obligations of the estate
since the order of partition and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the aforesaid
motions, petitioner Jose Cuenco Borromeo-filed a petition for mandamus before the Court of
Appeals to compel the respondent judge to terminate and close Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to pending motions to compel the
petitioner, as co-administrator, to submit an inventory of the real properties of the estate and an
accounting of the cash in his hands, pending claims for attorney's fees, and that mandamus will not
lie to compel the performance of a discretionary function, the appellate court denied the petition on
May 14, 1982. The petitioner's motion for reconsideration was likewise denied for lack of merit.
Hence, this petition.
The petitioner's stand is that the inaction of the respondent judge on the motion filed on April 28,
1972 for the closure of the administration proceeding cannot be justified by the filing of the motion for
inventory and accounting because the latter motion was filed only on March 2, 1979. He claimed that
under the then Constitution, it is the duty of the respondent judge to decide or resolve a case or
matter within three months from the date of its submission.
The respondents contend that the motion to close the administration had already been resolved
when the respondent judge cancelled all settings of all incidents previously set in his court in an
order dated June 4, 1979, pursuant to the resolution and restraining order issued by the Court of
Appeals enjoining him to maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order dated August 15, 1969. In this same
order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to partition the properties of
the deceased in the way and manner they are divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall be
segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p. 197, Rollo, G. R.
No. 41171) his court has not finally distributed to the nine (9) declared heirs the properties due to the
following circumstances:
1. The court's determination of the market value of the estate in order to segregate the 40%
reserved for attorney's fees;
2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of the 5/9
of the estate because of the waiver agreement signed by the heirs representing the 5/9
group which is still pending resolution by this Court (G.R. No. 4117 1);

3. The refusal of administrator Jose Cuenco Borromeo to render his accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of notices of lis
pendens on the different titles of the properties of the estate.
Since there are still real properties of the estate that were not vet distributed to some of the declared
heirs, particularly the 5/9 group of heirs due to the pending resolution of the waiver agreement, this
Court in its resolution of June 15, 1983, required the judge of the Court of First Instance of Cebu,
Branch 11, to expedite the determination of Special Proceedings No. 916-R and ordered the coadministrator Jose Cuenco Borromeo to submit an inventory of real properties of the estate and to
render an accounting of cash and bank deposits realized from rents of several properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated
December 24, 1974;
2. G.R. No. 63818, denying the petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the Intestate Estate of Vito Borromeo and ordering the remand of the
case to the Executive,Judge of the Regional trial Court of Cebu for re-raffling; and
3. G.R. No. 65995, granting the petition to restrain the respondents from further acting on
any and all incidents in Special proceedings No. 916-11 because of the affirmation of the
decision of the Intermediate Appellate Court in G.R. No. 63818.
the trial court may now terminate and close Special Proceedings No. 916-R, subject to the
submission of an inventory of the real properties of the estate and an accounting of the call and bank
deposits of the petitioner, as co-administrator of the estate, if he has not vet done so, as required by
this Court in its Resolution dated June 15, 1983. This must be effected with all deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a motion for
inhibition in the Court of First Instance of Cebu, Branch 11, presided over by Judge Francisco P.
Burgos to inhibit the judge from further acting in Special Proceedings No. 916-R. 'The movants
alleged, among others, the following:
xxx

xxx

xxx

6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the production of the
certificates of title and to deposit the same with the Branch Clerk of Court, presumably for the
ready inspection of interested buyers. Said motion was granted by the Hon. Court in its order
of October 2, 1978 which, however, became the subject of various motions for
reconsideration from heirs-distributees who contended that as owners they cannot be
deprived of their titles for the flimsy reasons advanced by Atty, Antigua. In view of the

motions for reconsideration, Atty Antigua ultimately withdraw his motions for production of
titles.
7. The incident concerning the production of titles triggered another incident involving Atty.
Raul H. Sesbreno who was then the counsel of herein movants Petra O. Borromeo and
Amelinda B. Talam In connection with said incident, Atty. Sesbreno filed a pleading which the
tion. presiding, Judge Considered direct contempt because among others, Atty. Sesbreno
insinuated that the Hon. Presiding Judge stands to receive "fat commission" from the sale of
the entire property. Indeed, Atty. Sesbreno was seriously in danger of being declared in
contempt of court with the dim prospect of suspension from the practice of his profession.
But obviously to extricate himself from the prospect of contempt and suspension. Atty.
Sesbreno chose rapproachment and ultimately joined forces with Atty. Antigua, et al., who,
together, continued to harass administrator
xxx

xxx

xxx

9. The herein movants are informed and so they allege, that a brother of the Hon. Presiding
Judge is married to a sister of Atty. Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are agitating for the
sale of the entire estate or to buy out the individual heirs, on the one hand, and the herein
movants, on the other, who are not willing to sell their distributive shares under the terms and
conditions presently proposed. In this tug of war, a pattern of harassment has become
apparent against the herein movants, especially Jose Cuenco Borromeo. Among the
harassments employed by Atty Antigua et al. are the pending motions for the removal of
administrator Jose Cuenco Borromeo, the subpoena duces tecum issued to the bank which
seeks to invade into the privacy of the personal account of Jose Cuenco Borromeo, and the
other matters mentioned in paragraph 8 hereof. More harassment motions are expected until
the herein movants shall finally yield to the proposed sale. In such a situation, the herein
movants beg for an entirely independent and impartial judge to pass upon the merits of said
incidents.
11. Should the Hon. Presiding Judge continue to sit and take cognizance of this proceeding,
including the incidents above-mentioned, he is liable to be misunderstood as being biased in
favor of Atty Antigua, et al. and prejudiced against the herein movants. Incidents which may
create this impression need not be enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for reconsideration
having been denied, the private respondents filed a petition for certiorari and/or prohibition with
preliminary injunction before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged, among others, the following:
xxx

xxx

xxx

16. With all due respect, petitioners regret the necessity of having to state herein that
respondent Hon. Francisco P. Burgos has shown undue interest in pursing the sale initiated
by Atty. Domingo L. Antigua, et al. Significantly, a brother of respondent Hon. Francisco P.
Burgos is married to a sister of Atty. Domingo L. Antigua.

17. Evidence the proposed sale of the entire properties of the estate cannot be legally done
without the conformity of the heirs-distributees because the certificates of title are already
registered in their names Hence, in pursuit of the agitation to sell, respondent Hon. Francisco
P. Burgos urged the heirs-distributees to sell the entire property based on the rationale that
proceeds thereof deposited in the bank will earn interest more than the present income of
the so called estate. Most of the heirs-distributees, however. have been petitioner timid to
say their piece. Only the 4/9 group of heirs led by Jose Cuenco Borromeo have had the
courage to stand up and refuse the proposal to sell clearly favored by respondent Hon.
Francisco P. Burgos.
xxx

xxx

xxx

20. Petitioners will refrain from discussing herein the merits of the shotgun motion of Atty.
Domingo L. Antigua as well as other incidents now pending in the court below which smack
of harassment against the herein petitioners. For, regardless of the merits of said incidents,
petitioners respectfully contend that it is highly improper for respondent Hon. Francisco P.
Burgos to continue to preside over Sp. Proc. No. 916-R by reason of the following
circumstances:
(a) He has shown undue interest in the sale of the properties as initiated by Atty.
Domingo L. Antigua whose sister is married to a brother of respondent.
(b) The proposed sale cannot be legally done without the conformity of the heirsdistributees, and petitioners have openly refused the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and similar incidents are clearly intended to
harass and embarrass administrator Jose Cuenco Borromeo in order to pressure him
into acceding to the proposed sale.
(d) Respondent has shown bias and prejudice against petitioners by failing to resolve
the claim for attorney's fees filed by Jose Cuenco Borromeo and the late Crispin
Borromeo. Similar claims by the other lawyers were resolved by respondent after
petitioners refused the proposed sale. (pp. 41-43, Rollo)
On March 1, 1983, the appellate court rendered its decision granting the petition for certiorari and/or
prohibition and disqualifying Judge Francisco P. Burgos from taking further cognizance of Special
Proceedings No. 916-R. The court also ordered the transmission of the records of the case to the
Executive Judge of the Regional Trial Court of Region VII for re-raffling.
A motion for reconsideration of the decision was denied by the appellate court on April 11, 1983.
Hence, the present petition for review seeking to modify the decision of the Intermediate Appellate
Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the case
of Intestate Estate of Vito Borromeo and orders the remand of the case to the Executive Judge of the
Regional Trial Court of Cebu for re-raffling.
The principal issue in this case has become moot and academic because Judge Francisco P.
Burgos decided to retire from the Regional Trial Court of Cebu sometime before the latest

reorganization of the judiciary. However, we decide the petition on its merits for the guidance of the
judge to whom this case will be reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They contend that
Judge Burgos has benn shown unusual interest in the proposed sale of the entire estate for
P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim that this disinterest is shown by the
judge's order of March 2, 1979 assessing the property of the estate at P15,000,000.00. They add
that he only ordered the administrator to sell so much of the properties of the estate to pay the
attorney's fees of the lawyers-claimants. To them, the inhibition of Judge Burgos would have been
unreasonable because his orders against the failure of Jose Cuenco Borromeo, as administrator, to
give an accounting and inventory of the estate were all affirmed by the appellate court. They claim
that the respondent court, should also have taken judicial notice of the resolution of this Court
directing the said judge to "expedite the settlement and adjudication of the case" in G.R. No. 54232.
And finally, they state that the disqualification of judge Burgos would delay further the closing of the
administration proceeding as he is the only judge who is conversant with the 47 volumes of the
records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered that Judge
Burgos appointed Ricardo V. Reyes as co-administrator of the estate on October 11, 1972, yet
Borromeo was singled out to make an accounting of what t he was supposed to have received as
rentals for the land upon which the Juliana Trade Center is erected, from January, 1977 to February
1982, inclusive, without mentioning the withholding tax for the Bureau of Internal Revenue. In order
to bolster the agitation to sell as proposed by Domingo L. Antigua, Judge Burgos invited Antonio
Barredo, Jr., to a series of conferences from February 26 to 28, 1979. During the conferences, Atty.
Antonio Barredo, Jr., offered to buy the shares of the heirs-distributees presumably to cover up the
projected sale initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed by petitioner Domingo L.
Antigua praying that Jose Cuenco Borromeo be required to file an inventory when he has already
filed one to account for cash, a report on which the administrators had already rendered: and to
appear and be examined under oath in a proceeding conducted by Judge Burgos lt was also prayed
that subpoena duces tecum be issued for the appearance of the Manager of the Consolidated Bank
and Trust Co., bringing all the bank records in the name of Jose Cuenco Borromeo jointly with his
wife as well as the appearance of heirs-distributees Amelinda Borromeo Talam and another heir
distributee Vitaliana Borromeo. Simultaneously with the filing of the motion of Domingo Antigua, Atty.
Raul H. Sesbreno filed a request for the issuance of subpoena duces tecum to the Manager of
Consolidated Bank and 'Trust Co., Inc.; Register of Deeds of Cebu City; Register of Deeds for the
Province of Cebu and another subpoena duces tecum to Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the Managert of the
bank, the Register of deeds for the City of Cebu, the Register of Deeds for the Province, of Cebu.
and to Jose Cuenco Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the heirs of Marcial
Borromeo who had a common cause with Atty Barredo, Jr., joined petitioner Domingo L. Antigua by
filing a motion for relief of the administrator.

On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoena duces tecum to
private respondent Jose Cuenco Borromeo to bring and produce all the owners" copies of the titles
in the court presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a subpoena duces tecum commanding Atty. Jose
Cuenco Borromeo to bring and produce the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979, before the date
of the hearing, Judge Burgos issued an order denying the private respondents' motion for
reconsideration and the motion to quash the subpoena.
1avvphi1

It was further argued by the private respondents that if ,judge Francisco P. Burgos is not inhibited or
disqualified from trying Sp. Proc. No. 916-R, there would be a miscarriage of justice Because for the
past twelve years, he had not done anything towards the closure of the estate proceedings except to
sell the properties of the heirs-distributees as initiated by petitioner Domingo L. Antigua at 6.7 million
pesos while the Intestate Court had already evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for inhibition, more specifically, the
insistence of the trial judge to sell the entire estate at P6,700,000.00, where 4/9 group of heirs
objected, cannot easily be ignored. Suspicion of partiality on the part of a trial judge must be avoided
at all costs. In the case of Bautista v. Rebeuno (81 SCRA 535), this Court stated:
... The Judge must maintain and preserve the trust and faith of the parties litigants. He must
hold himself above reproach and suspicion. At the very first sign of lack of faith and trust to
his actions, whether well grounded or not, the Judge has no other alternative but inhibit
himself from the case. A judge may not be legally Prohibited from sitting in a litigation, but
when circumstances appear that will induce doubt to his honest actuations and probity in
favor or of either partly or incite such state of mind, he should conduct a careful selfexamination. He should exercise his discretion in a way that the people's faith in the Courts
of Justice is not impaired, "The better course for the Judge under such circumstances is to
disqualify himself "That way he avoids being misunderstood, his reputation for probity and
objectivity is preserve ed. what is more important, the Ideal of impartial administration of
justice is lived up to.
In this case, the fervent distrust of the private respondents is based on sound reasons. As Earlier
stated, however, the petition for review seeking to modify the decision of the Intermediate Appellate
Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the
Intestate Estate of Vito Borromeo case and ordering the remand of the case to the Executive Judge
of the Regional Trial Court for re-raffling should be DENIED for the decision is not only valid but the
issue itself has become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on any and all incidents in
Special Proceedings No. 916-R during the pendency of this petition and No. 63818. They also pray
that all acts of the respondents related to the said special proceedings after March 1, 1983 when the
respondent Judge was disqualified by the appellate court be declared null and void and without force
and effect whatsoever.

The petitioners state that the respondent Judge has set for hearing all incidents in Special
Proceedings No. 916-R, including the reversion from the heirs-distributees to the estate, of the
distributed properties already titled in their names as early as 1970, notwithstanding the pending
inhibition case elevated before this Court which is docketed as G.R. No. 63818.
The petitioners further argue that the present status of Special Proceeding No. 916-R requires only
the appraisal of the attorney's fees of the lawyers-claimants who were individually hired by their
respective heirs-clients, so their attorney's fees should be legally charged against their respective
clients and not against the estate.
On the other hand, the respondents maintain that the petition is a dilatory one and barred by res
judicata because this Court on July 8, 1981, in G.R. No. 54232 directed the respondent Judge to
expedite the settlement and liquidation of the decedent's estate. They claim that this resolution,
which was already final and executory, was in effect reversed and nullified by the Intermediate
Appellate Court in its case-AC G.R.-No. SP - 11145 when it granted the petition for certiorari and
or prohibition and disqualified Judge Francisco P. Burgos from taking further cognizance of Special
Proceedings No. 916R as well as ordering the transmission of the records of the case to the
Executive Judge of the Regional Trial Court of Region VII for re-raffling on March 1, 1983, which was
appealed to this Court by means of a Petition for Review (G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are not the obligation of the estate but
of the individual heirs who individually hired their respective lawyers. The portion, therefore, of the
Order of August 15, 1969, segregating the exhorbitantly excessive amount of 40% of the market
value of the estate from which attorney's fees shall be taken and paid should be deleted.
Due to our affirmance of the decision of the Intermediate Appellate Court in G.R. No. 63818, we
grant the petition.
WHEREFORE,
(1) In G.R. No. 41171, the order of the respondent judge dated December 24, 1974,
declaring the respondent entitled to 5/9 of the estate of the late Vito Borromeo and the order
dated July 7, 1975, denying the petitioner's motion for reconsideration of the aforementioned
order are hereby SET ASIDE for being NULL and VOID;
(2) In G.R. No. 55000, the order of the trial court declaring the waiver document valid is
hereby SET ASIDE;
(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of the
Intermediate Appellate Court disqualifying and ordering the inhibition of Judge Francisco P.
Burgos from further hearing Special Proceedings No. 916-R is declared moot and academic.
The judge who has taken over the sala of retired Judge Francisco P. Burgos shall
immediately conduct hearings with a view to terminating the proceedings. In the event that
the successor-judge is likewise disqualified, the order of the Intermediate Appellate Court
directing the Executive Judge of the Regional Trial Court of Cebu to re-raffle the case shall
be implemented:
(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking to restrain Judge
Francisco P. Burgos from further acting in G.R. No. 63818 is MOOT and ACADEMIC:

(5) In G.R, No, 62895, the trial court is hereby ordered to speedily terminate the close
Special Proceedings No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the cash and bank deposits by the petitioneradministrator of the estate as required by this Court in its Resolution dated June 15, 1983;
and
(6) The portion of the Order of August 15, 1969, segregating 40% of the market value of the
estate from which attorney's fees shall be taken and paid should be, as it is hereby
DELETED. The lawyers should collect from the heirs-distributees who individually hired
them, attorney's fees according to the nature of the services rendered but in amounts which
should not exceed more than 20% of the market value of the property the latter acquired
from the estate as beneficiaries.
SO ORDERED.

SECOND DIVISION

[G.R. No. 129008. January 13, 2004]

TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her

husband ZALDY EVANGELISTA, ALBERTO ORFINADA, and
ROWENA O. UNGOS, assisted by her husband BEDA
UNGOS, petitioners, vs. COURT OF APPEALS, ESPERANZA P.
ORFINADA, LOURDES P. ORFINADA, ALFONSO ORFINADA,
NANCY P. ORFINADA, ALFONSO JAMES P. ORFINADA,
CHRISTOPHER
P.
ORFINADA
and
ANGELO
P.
ORFINADA, respondents.
DECISION
TINGA, J.:

Whether the heirs may bring suit to recover property of the estate pending the
appointment of an administrator is the issue in this case.
This Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeks to
set aside the Decision of the Court of Appeals in CA-G.R. SP No. 42053 dated January
31, 1997, as well as its Resolution dated March 26, 1997, denying petitioners motion
for reconsideration.
[1]

[2]

On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in Angeles City leaving
several personal and real properties located in Angeles City, Dagupan City and
Kalookan City. He also left a widow, respondent Esperanza P. Orfinada, whom he
married on July 11, 1960 and with whom he had seven children who are the herein
[3]

respondents, namely: Lourdes P. Orfinada, Alfonso Clyde P. Orfinada, Nancy P.

Orfinada-Happenden, Alfonso James P. Orfinada, Christopher P. Orfinada, Alfonso Mike
P. Orfinada (deceased) and Angelo P. Orfinada.
[4]

Apart from the respondents, the demise of the decedent left in mourning his
paramour and their children. They are petitioner Teodora Riofero, who became a part of
his life when he entered into an extra-marital relationship with her during the
subsistence of his marriage to Esperanza sometime in 1965, and co-petitioners
Veronica , Alberto and Rowena.
[5]

[6]

On November 14, 1995, respondents Alfonso James and Lourdes Orfinada

discovered
that
on
June
29,
1995,
petitioner
Teodora
Rioferio
and her children executed anExtrajudicial Settlement of Estate of a Deceased Person
with Quitclaim involving the properties of the estate of the decedent located in Dagupan
City and that accordingly, the Registry of Deeds in Dagupan issued Certificates of Titles
Nos. 63983, 63984 and 63985 in favor of petitioners Teodora Rioferio, Veronica
Orfinada-Evangelista, Alberto Orfinada and Rowena Orfinada-Ungos. Respondents also
found out that petitioners were able to obtain a loan of P700,000.00 from the Rural Bank
of Mangaldan Inc. by executing a Real Estate Mortgage over the properties subject of
the extra-judicial settlement.
[7]

On December 1, 1995, respondent Alfonso Clyde P. Orfinada III filed a Petition for
Letters of Administration docketed as S.P. Case No. 5118 before the Regional Trial
Court of Angeles City, praying that letters of administration encompassing the estate of
Alfonso P. Orfinada, Jr. be issued to him.
[8]

On December 4, 1995, respondents filed a Complaint for the Annulment/Rescission

of Extra Judicial Settlement of Estate of a Deceased Person with Quitclaim, Real Estate
Mortgage and Cancellation of Transfer Certificate of Titles with Nos. 63983, 63985 and
63984 and Other Related Documents with Damages against petitioners, the Rural Bank
of Mangaldan, Inc. and the Register of Deeds of Dagupan City before the Regional Trial
Court, Branch 42, Dagupan City.
[9]

On February 5, 1996, petitioners filed their Answer to the aforesaid complaint

interposing the defense that the property subject of the contested deed of extra-judicial
settlement pertained to the properties originally belonging to the parents of Teodora
Riofero and that the titles thereof were delivered to her as an advance inheritance but
the decedent had managed to register them in his name. Petitioners also raised the
affirmative defense that respondents are not the real parties-in-interest but rather the
Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the administration
proceedings. On April 29, 1996, petitioners filed a Motion to Set Affirmative Defenses
for Hearing on the aforesaid ground.
[10]

[11]

[12]

[13]

The lower court denied the motion in its Order dated June 27, 1996, on the ground
that respondents, as heirs, are the real parties-in-interest especially in the absence of
an administrator who is yet to be appointed in S.P. Case No. 5118. Petitioners moved
for its reconsideration but the motion was likewise denied.
[14]

[15]

[16]

This prompted petitioners to file before the Court of Appeals their Petition for
Certiorari under Rule 65 of the Rules of Court docketed as CA G.R. S.P. No. 42053.

Petitioners averred that the RTC committed grave abuse of discretion in issuing the
assailed order which denied the dismissal of the case on the ground that the proper
party to file the complaint for the annulment of the extrajudicial settlement of the estate
of the deceased is the estate of the decedent and not the respondents.
[17]

[18]

The Court of Appeals rendered the assailed Decision dated January 31, 1997,
stating that it discerned no grave abuse of discretion amounting to lack or excess of
jurisdiction by the public respondent judge when he denied petitioners motion to set
affirmative defenses for hearing in view of its discretionary nature.
[19]

A Motion for Reconsideration was filed by petitioners but it was denied. Hence, the
petition before this Court.
[20]

The issue presented by the petitioners before this Court is whether the heirs have
legal standing to prosecute the rights belonging to the deceased subsequent to the
commencement of the administration proceedings.
[21]

Petitioners vehemently fault the lower court for denying their motion to set the case
for preliminary hearing on their affirmative defense that the proper party to bring the
action is the estate of the decedent and not the respondents. It must be stressed that
the holding of a preliminary hearing on an affirmative defense lies in the discretion of the
court. This is clear from the Rules of Court, thus:

SEC. 5. Pleadings grounds as affirmative defenses.- Any of the grounds for dismissal
provided for in this rule, except improper venue, may be pleaded as an affirmative
defense, and a preliminary hearing may be had thereon as if a motion to dismiss had
been filed. (Emphasis supplied.)
[22]

Certainly, the incorporation of the word may in the provision is clearly indicative of
the optional character of the preliminary hearing. The word denotes discretion and
cannot be construed as having a mandatory effect. Subsequently, the electivity of the
proceeding was firmed up beyond cavil by the 1997 Rules of Civil Procedure with the
inclusion of the phrase in the discretion of the Court, apart from the retention of the word
may in Section 6, in Rule 16 thereof.
[23]

[24]

Just as no blame of abuse of discretion can be laid on the lower courts doorstep for
not hearing petitioners affirmative defense, it cannot likewise be faulted for recognizing
the legal standing of the respondents as heirs to bring the suit.
Pending the filing of administration proceedings, the heirs without doubt have legal
personality to bring suit in behalf of the estate of the decedent in accordance with the
provision of Article 777 of the New Civil Code that (t)he rights to succession are
transmitted from the moment of the death of the decedent. The provision in turn is the
foundation of the principle that the property, rights and obligations to the extent and
value of the inheritance of a person are transmitted through his death to another or
others by his will or by operation of law.
[25]

Even if administration proceedings have already been commenced, the heirs may
still bring the suit if an administrator has not yet been appointed. This is the proper

modality despite the total lack of advertence to the heirs in the rules on party
representation, namely Section 3, Rule 3 and Section 2, Rule 87 of the Rules of
Court. In fact, in the case of Gochan v. Young, this Court recognized the legal standing
of the heirs to represent the rights and properties of the decedent under administration
pending the appointment of an administrator. Thus:
[26]

[27]

[28]

The above-quoted rules, while permitting an executor or administrator to represent

or to bring suits on behalf of the deceased, do not prohibit the heirs from representing
the deceased. These rules are easily applicable to cases in which an administrator
has already been appointed. But no rule categorically addresses the situation in
which special proceedings for the settlement of an estate have already been
instituted, yet no administrator has been appointed. In such instances, the heirs
cannot be expected to wait for the appointment of an administrator; then wait further
to see if the administrator appointed would care enough to file a suit to protect the
rights and the interests of the deceased; and in the meantime do nothing while the
rights and the properties of the decedent are violated or dissipated.
[29]

Even if there is an appointed administrator, jurisprudence recognizes two

exceptions, viz: (1) if the executor or administrator is unwilling or refuses to bring suit;
and (2) when the administrator is alleged to have participated in the act complained
of and he is made a party defendant. Evidently, the necessity for the heirs to seek
judicial relief to recover property of the estate is as compelling when there is no
appointed administrator, if not more, as where there is an appointed administrator but
he is either disinclined to bring suit or is one of the guilty parties himself.
[30]

[31]

[32]

All told, therefore, the rule that the heirs have no legal standing to sue for the
recovery of property of the estate during the pendency of administration proceedings
has three exceptions, the third being when there is no appointed administrator such as
in this case.
As the appellate court did not commit an error of law in upholding the order of the
lower court, recourse to this Court is not warranted.
WHEREFORE, the petition for review is DENIED. The assailed decision and
resolution of the Court of Appeals are hereby AFFIRMED. No costs.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

[1]

Rollo, pp. 17-20.

[2]

Id, at 21-22.

[3]

Id. at 95.

[4]

Ibid.

[5]

The Complaint for Annulment/Rescission of the Extrajudicial Settlement of the Estate of a Deceased
Person dated December 2, 1995 contains an allegation under paragraph 9 that Veronica is not
one of the illegitimate children of the decedent Alfonso P. Orfinada, Jr. by Teodora Riofero but of
one Alonzo Orfinada.

[6]

Rollo, p. 95.

[7]

Id. at 95-96.

[8]

Id. at 96.

[9]

Id. at 28-37.

[10]

CA Rollo, p. 38.

[11]

Id. at 10.

[12]

Id. at 38.

[13]

Rollo, pp. 107-108.

[14]

CA Rollo, pp. 113-116.

[15]

Id. at 32-34.

[16]

Id. at 39-40.

[17]

Id. at 1-12.

[18]

Id. at 7.

[19]

Rollo, pp. 17-20.

[20]

Id. at 21-22.

[21]

Id. at 124.

[22]

Rule 16 of the Rules of Court. It is Section 6, Rule 16 of the 1997 Rules of Civil Procedure which reads:

Section 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the
answer and,in the discretion of the court, a preliminary hearing may be had thereon as if a
motion to dismiss had been filed.
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same
or separate action of a counterclaim pleaded in the answer. (Emphasis supplied)
[23]

Republic Planters Bank v. Agana, Sr., G.R. No. 51765, 269 SCRA 1, 12 (1997).

[24]

Supra note 22.

[25]

Coronel v. Court of Appeals, G.R. No. 103577, October 7, 1996, 263 SCRA 15.

[26]

Section 3 of Rule 3 of the Rules of Court:

Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the
title of the case and shall be deemed to be the real party in interest. A representative may be a
trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law
or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except when the contract involves things
belonging to the principal.
[27]

Section 2 of Rule 87:

Sec. 2. Executor or administrator may bring or defend actions which survive. For the recovery or
protection right of the deceased, actions for causes which survive.
[28]

G.R. No. 131889, March 12, 2001, 354 SCRA 207.

[29]

Supra, note 26.

[30]

Pascual v. Pascual, 73 Phil. 561 (1942).

[31]

Velasquez v. George, G.R. No. L-62376, October 27, 1983, 125 SCRA 456.

[32]

Borromeo v. Borromeo, 98 Phil 432 (1956).