SUCCESSION CASES~ATTY. JUAN [KM.
COLINA] 1
CASE NO. 1
G.R. No. L-4963 January 29, 1953
MARIA USON, plaintiff-appellee,
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA,
CONRADO NEBREDA, DOMINADOR NEBREDA, AND
FAUSTINO NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and
possession of five (5) parcels of land situated in the
Municipality of Labrador, Province of Pangasinan,
filed by Maria Uson against Maria del Rosario and
her four children named Concepcion, Conrado,
Dominador, and Faustino, surnamed Nebreda,
who are all of minor age, before the Court of First
Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino
Nebreda who upon his death in 1945 left the lands
involved in this litigation. Faustino Nebreda left no
other heir except his widow Maria Uson. However,
plaintiff claims that when Faustino Nebreda died
in 1945, his common-law wife Maria del Rosario
took possession illegally of said lands thus
depriving her of their possession and enjoyment.
Defendants in their answer set up as special
defense that on February 21, 1931, Maria Uson
and her husband, the late Faustino Nebreda,
executed a public document whereby they agreed
to separate as husband and wife and, in
consideration of their separation, Maria Uson was
given a parcel of land by way of alimony and in
return she renounced her right to inherit any other
property that may be left by her husband upon his
death (Exhibit 1).
After trial, at which both parties presented their
respective evidence, the court rendered decision
ordering the defendants to restore to the plaintiff
the ownership and possession of the lands in
dispute without special pronouncement as to
costs. Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-
appellee, is the lawful wife of Faustino Nebreda,
former owner of the five parcels of lands litigated
in the present case. There is likewise no dispute
that Maria del Rosario, one of the defendants-
appellants, was merely a common-law wife of the
late Faustino Nebreda with whom she had four
illegitimate children, her now co-defendants. It
likewise appears that Faustino Nebreda died in
1945 much prior to the effectivity of the new Civil
Code. With this background, it is evident that
when Faustino Nebreda died in 1945 the five
parcels of land he was seized of at the time passed
from the moment of his death to his only heir, his
widow Maria Uson (Article 657, old Civil Code)
[*ART.777,NCC]. 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 (alleviate) 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.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 2
CASE NO. 2
G.R. No. 103577 October 7, 1996
ROMULO A. CORONEL, ALARICO A. CORONEL,
ANNETTE A. CORONEL, ANNABELLE C. GONZALES
(for herself and on behalf of Florida C. Tupper, as
attorney-in-fact), CIELITO A. CORONEL, FLORAIDA
A. ALMONTE, and CATALINA BALAIS
MABANAG, petitioners,
vs.
THE COURT OF APPEALS, CONCEPCION D.
ALCARAZ, and RAMONA PATRICIA ALCARAZ,
assisted by GLORIA F. NOEL as attorney-in-
fact, respondents.
MELO, J.:p
The petition before us has its roots in a complaint
for specific performance to compel herein
petitioners (except the last named, Catalina Balais
Mabanag) to consummate the sale of a parcel of
land with its improvements located along
Roosevelt Avenue in Quezon City entered into by
the parties sometime in January 1985 for the price
of P1,240,000.00.
The undisputed facts of the case were summarized
by respondent court in this wise:
On January 19, 1985, defendants-appellants
Romulo Coronel, et al. (hereinafter referred to as
Coronels) executed a document entitled "Receipt
of Down Payment" (Exh. "A") in favor of plaintiff
Ramona Patricia Alcaraz (hereinafter referred to as
Ramona) which is reproduced hereunder:
RECEIPT OF DOWN PAYMENT
P1,240,000.00 Total amount
50,000 Down payment
P1,190,000.00 Balance
Received from Miss Ramona Patricia Alcaraz of 146
Timog, Quezon City, the sum of Fifty Thousand
Pesos purchase price of our inherited house and
lot, covered by TCT No. 119627 of the Registry of
Deeds of Quezon City, in the total amount of
P1,240,000.00.

We bind ourselves to effect the transfer in our
names from our deceased father, Constancio P.
Coronel, the transfer certificate of title
immediately upon receipt of the down payment
above-stated.
On our presentation of the TCT already in or name,
We will immediately execute the deed of absolute
sale of said property and Miss Ramona Patricia
Alcaraz shall immediately pay the balance of the
P1,190,000.00.
Clearly, the conditions appurtenant to the sale are
the following:
1. Ramona will make a down payment of Fifty
Thousand (P50,000.00) Pesos upon execution of
the document aforestated;
2. The Coronels will cause the transfer in their
names of the title of the property registered in the
name of their deceased father upon receipt of the
Fifty Thousand (P50,000.00) Pesos down payment;
3. Upon the transfer in their names of the subject
property, the Coronels will execute the deed of
absolute sale in favor of Ramona and the latter will
pay the former the whole balance of One Million
One Hundred Ninety Thousand (P1,190,000.00)
Pesos.
On the same date (January 15, 1985), plaintiff-
appellee Concepcion D. Alcaraz (hereinafter
referred to as Concepcion), mother of Ramona,
paid the down payment of Fifty Thousand
(P50,000.00) Pesos (Exh. "B", Exh. "2").
On February 6, 1985, the property originally
registered in the name of the Coronels' father was
transferred in their names under TCT
No. 327043 (Exh. "D"; Exh. "4")
On February 18, 1985, the Coronels sold the
property covered by TCT No. 327043 to intervenor-
appellant Catalina B. Mabanag (hereinafter
referred to as Catalina) for One Million Five
Hundred Eighty Thousand (P1,580,000.00) Pesos
after the latter has paid Three Hundred Thousand
(P300,000.00) Pesos (Exhs. "F-3"; Exh. "6-C")
For this reason, Coronels canceled and rescinded
the contract (Exh. "A") with Ramona by depositing
the down payment paid by Concepcion in the
bank in trust for Ramona Patricia Alcaraz.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 3
On February 22, 1985, Concepcion, et al., filed a
complaint for specific performance against the
Coronels and caused the annotation of a notice
of lis pendens at the back of TCT No. 327403 (Exh.
"E"; Exh. "5").
On April 2, 1985, Catalina caused the annotation of
a notice of adverse claim covering the same
property with the Registry of Deeds of Quezon City
(Exh. "F"; Exh. "6").
On April 25, 1985, the Coronels executed a Deed of
Absolute Sale over the subject property in favor of
Catalina (Exh. "G"; Exh. "7").
On June 5, 1985, a new title over the subject
property was issued in the name of Catalina under
TCT No. 351582 (Exh. "H"; Exh. "8").
(Rollo, pp. 134-136)
In the course of the proceedings before the trial
court (Branch 83, RTC, Quezon City) the parties
agreed to submit the case for decision solely on
the basis of documentary exhibits. Thus, plaintiffs
therein (now private respondents) proffered their
documentary evidence accordingly marked as
Exhibits "A" through "J", inclusive of their
corresponding submarkings. Adopting these same
exhibits as their own, then defendants (now
petitioners) accordingly offered and marked them
as Exhibits "1" through "10", likewise inclusive of
their corresponding submarkings. Upon motion of
the parties, the trial court gave them thirty (30)
days within which to simultaneously submit their
respective memoranda, and an additional 15 days
within which to submit their corresponding
comment or reply thereof, after which, the case
would be deemed submitted for resolution.
On April 14, 1988, the case was submitted for
resolution before Judge Reynaldo Roura, who was
then temporarily detailed to preside over Branch
82 of the RTC of Quezon City. On March 1, 1989,
judgment was handed down by Judge Roura from
his regular bench at Macabebe, Pampanga for the
Quezon City branch, disposing as follows:
WHEREFORE, judgment for specific performance is
hereby rendered ordering defendant to execute in
favor of plaintiffs a deed of absolute sale covering
that parcel of land embraced in and covered by
Transfer Certificate of Title No. 327403 (now TCT

No. 331582) of the Registry of Deeds for Quezon
City, together with all the improvements existing
thereon free from all liens and encumbrances, and
once accomplished, to immediately deliver the
said document of sale to plaintiffs and upon
receipt thereof, the said document of sale to
plaintiffs and upon receipt thereof, the plaintiffs
are ordered to pay defendants the whole balance
of the purchase price amounting to P1,190,000.00
in cash. Transfer Certificate of Title No. 331582 of
the Registry of Deeds for Quezon City in the name
of intervenor is hereby canceled and declared to
be without force and effect. Defendants and
intervenor and all other persons claiming under
them are hereby ordered to vacate the subject
property and deliver possession thereof to
plaintiffs. Plaintiffs' claim for damages and
attorney's fees, as well as the counterclaims of
defendants and intervenors are hereby dismissed.
No pronouncement as to costs.
So Ordered.
Macabebe, Pampanga for Quezon City, March 1,
1989.
(Rollo, p. 106)
A motion for reconsideration was filed by
petitioner before the new presiding judge of the
Quezon City RTC but the same was denied by
Judge Estrella T. Estrada, thusly:
The prayer contained in the instant motion, i.e., to
annul the decision and to render anew decision by
the undersigned Presiding Judge should be denied
for the following reasons: (1) The instant case
became submitted for decision as of April 14, 1988
when the parties terminated the presentation of
their respective documentary evidence and when
the Presiding Judge at that time was Judge
Reynaldo Roura. The fact that they were allowed
to file memoranda at some future date did not
change the fact that the hearing of the case was
terminated before Judge Roura and therefore the
same should be submitted to him for decision; (2)
When the defendants and intervenor did not
object to the authority of Judge Reynaldo Roura to
decide the case prior to the rendition of the
decision, when they met for the first time before
the undersigned Presiding Judge at the hearing of
a pending incident in Civil Case No. Q-46145 on
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 4
November 11, 1988, they were deemed to have
acquiesced thereto and they are now estopped
from questioning said authority of Judge Roura
after they received the decision in question which
happens to be adverse to them; (3) While it is true
that Judge Reynaldo Roura was merely a Judge-on-
detail at this Branch of the Court, he was in all
respects the Presiding Judge with full authority to
act on any pending incident submitted before this
Court during his incumbency. When he returned to
his Official Station at Macabebe, Pampanga, he did
not lose his authority to decide or resolve such
cases submitted to him for decision or resolution
because he continued as Judge of the Regional
Trial Court and is of co-equal rank with the
undersigned Presiding Judge. The standing rule
and supported by jurisprudence is that a Judge to
whom a case is submitted for decision has the
authority to decide the case notwithstanding his
transfer to another branch or region of the same
court (Sec. 9, Rule 135, Rule of Court).
Coming now to the twin prayer for reconsideration
of the Decision dated March 1, 1989 rendered in
the instant case, resolution of which now pertains
to the undersigned Presiding Judge, after a
meticulous examination of the documentary
evidence presented by the parties, she is
convinced that the Decision of March 1, 1989 is
supported by evidence and, therefore, should not
be disturbed.
IN VIEW OF THE FOREGOING, the "Motion for
Reconsideration and/or to Annul Decision and
Render Anew Decision by the Incumbent Presiding
Judge" dated March 20, 1989 is hereby DENIED.
SO ORDERED.
Quezon City, Philippines, July 12, 1989.
(Rollo, pp. 108-109)
Petitioners thereupon interposed an appeal, but
on December 16, 1991, the Court of Appeals
(Buena, Gonzaga-Reyes, Abad Santos (P), JJ.)
rendered its decision fully agreeing with the trial
court.
Hence, the instant petition which was filed on
March 5, 1992. The last pleading, private
respondents' Reply Memorandum, was filed on
September 15, 1993. The case was, however, re-

raffled to undersigned ponente only on August 28,
1996, due to the voluntary inhibition of the Justice
to whom the case was last assigned.
While we deem it necessary to introduce certain
refinements in the disquisition of respondent court
in the affirmance of the trial court's decision, we
definitely find the instant petition bereft of merit.
The heart of the controversy which is the ultimate
key in the resolution of the other issues in the case
at bar is the precise determination of the legal
significance of the document entitled "Receipt of
Down Payment" which was offered in evidence by
both parties. There is no dispute as to the fact that
said document embodied the binding contract
between Ramona Patricia Alcaraz on the one hand,
and the heirs of Constancio P. Coronel on the
other, pertaining to a particular house and lot
covered by TCT No. 119627, as defined in Article
1305 of the Civil Code of the Philippines which
reads as follows:
Art. 1305. A contract is a meeting of minds
between two persons whereby one binds himself,
with respect to the other, to give something or to
render some service.
While, it is the position of private respondents that
the "Receipt of Down Payment" embodied a
perfected contract of sale, which perforce, they
seek to enforce by means of an action for specific
performance, petitioners on their part insist that
what the document signified was a mere executory
contract to sell, subject to certain suspensive
conditions, and because of the absence of Ramona
P. Alcaraz, who left for the United States of
America, said contract could not possibly ripen
into a contract absolute sale.
Plainly, such variance in the contending parties'
contentions is brought about by the way each
interprets the terms and/or conditions set forth in
said private instrument. Withal, based on
whatever relevant and admissible evidence may
be available on record, this, Court, as were the
courts below, is now called upon to adjudge what
the real intent of the parties was at the time the
said document was executed.
The Civil Code defines a contract of sale, thus:
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 5
Art. 1458. By the contract of sale one of the
contracting parties obligates himself to transfer
the ownership of and to deliver a determinate
thing, and the other to pay therefor a price certain
in money or its equivalent.
Sale, by its very nature, is a consensual contract
because it is perfected by mere consent. The
essential elements of a contract of sale are the
following:
a) Consent or meeting of the minds, that is,
consent to transfer ownership in exchange for the
price;
b) Determinate subject matter; and
c) Price certain in money or its equivalent.
Under this definition, a Contract to Sell may not be
considered as a Contract of Sale because the first
essential element is lacking. In a contract to sell,
the prospective seller explicity reserves the
transfer of title to the prospective buyer, meaning,
the prospective seller does not as yet agree or
consent to transfer ownership of the property
subject of the contract to sell until the happening
of an event, which for present purposes we shall
take as the full payment of the purchase price.
What the seller agrees or obliges himself to do is
to fulfill is promise to sell the subject property
when the entire amount of the purchase price is
delivered to him. In other words the full payment
of the purchase price partakes of a suspensive
condition, the non-fulfillment of which prevents
the obligation to sell from arising and thus,
ownership is retained by the prospective seller
without further remedies by the prospective
buyer. In Roque vs. Lapuz (96 SCRA 741 [1980]),
this Court had occasion to rule:
Hence, We hold that the contract between the
petitioner and the respondent was a contract to
sell where the ownership or title is retained by the
seller and is not to pass until the full payment of
the price, such payment being a positive
suspensive condition and failure of which is not a
breach, casual or serious, but simply an event that
prevented the obligation of the vendor to convey
title from acquiring binding force.
Stated positively, upon the fulfillment of the
suspensive condition which is the full payment of

the purchase price, the prospective seller's
obligation to sell the subject property by entering
into a contract of sale with the prospective buyer
becomes demandable as provided in Article 1479
of the Civil Code which states:
Art. 1479. A promise to buy and sell a determinate
thing for a price certain is reciprocally
demandable.
An accepted unilateral promise to buy or to sell a
determinate thing for a price certain is binding
upon the promissor if the promise is supported by
a consideration distinct from the price.
A contract to sell may thus be defined as a bilateral
contract whereby the prospective seller, while
expressly reserving the ownership of the subject
property despite delivery thereof to the
prospective buyer, binds himself to sell the said
property exclusively to the prospective buyer upon
fulfillment of the condition agreed upon, that is,
full payment of the purchase price.
A contract to sell as defined hereinabove, may not
even be considered as a conditional contract of
sale where the seller may likewise reserve title to
the property subject of the sale until the
fulfillment of a suspensive condition, because in a
conditional contract of sale, the first element of
consent is present, although it is conditioned upon
the happening of a contingent event which may or
may not occur. If the suspensive condition is not
fulfilled, the perfection of the contract of sale is
completely abated (cf. Homesite and housing Corp.
vs. Court of Appeals, 133 SCRA 777 [1984]).
However, if the suspensive condition is fulfilled,
the contract of sale is thereby perfected, such that
if there had already been previous delivery of the
property subject of the sale to the buyer,
ownership thereto automatically transfers to the
buyer by operation of law without any further act
having to be performed by the seller.
In a contract to sell, upon the fulfillment of the
suspensive condition which is the full payment of
the purchase price, ownership will not
automatically transfer to the buyer although the
property may have been previously delivered to
him. The prospective seller still has to convey title
to the prospective buyer by entering into a
contract of absolute sale.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 6
It is essential to distinguish between a contract to
sell and a conditional contract of sale specially in
cases where the subject property is sold by the
owner not to the party the seller contracted with,
but to a third person, as in the case at bench. In a
contract to sell, there being no previous sale of the
property, a third person buying such property
despite the fulfillment of the suspensive condition
such as the full payment of the purchase price, for
instance, cannot be deemed a buyer in bad faith
and the prospective buyer cannot seek the relief of
reconveyance of the property. There is no double
sale in such case. Title to the property will transfer
to the buyer after registration because there is no
defect in the owner-seller's title per se, but the
latter, of course, may be used for damages by the
intending buyer.
In a conditional contract of sale, however, upon
the fulfillment of the suspensive condition, the
sale becomes absolute and this will definitely
affect the seller's title thereto. In fact, if there had
been previous delivery of the subject property, the
seller's ownership or title to the property is
automatically transferred to the buyer such that,
the seller will no longer have any title to transfer
to any third person. Applying Article 1544 of the
Civil Code, such second buyer of the property who
may have had actual or constructive knowledge of
such defect in the seller's title, or at least was
charged with the obligation to discover such
defect, cannot be a registrant in good faith. Such
second buyer cannot defeat the first buyer's title.
In case a title is issued to the second buyer, the
first buyer may seek reconveyance of the property
subject of the sale.
With the above postulates as guidelines, we now
proceed to the task of deciphering the real nature
of the contract entered into by petitioners and
private respondents.
It is a canon in the interpretation of contracts that
the words used therein should be given their
natural and ordinary meaning unless a technical
meaning was intended (Tan vs. Court of
Appeals, 212 SCRA 586 [1992]). Thus, when
petitioners declared in the said "Receipt of Down
Payment" that they
Received from Miss Ramona Patricia Alcaraz of 146
Timog, Quezon City, the sum of Fifty Thousand

Pesos purchase price of our inherited house and
lot, covered by TCT No. 1199627 of the Registry of
Deeds of Quezon City, in the total amount of
P1,240,000.00.
without any reservation of title until full payment
of the entire purchase price, the natural and
ordinary idea conveyed is that they sold their
property.
When the "Receipt of Down Payment" is
considered in its entirety, it becomes more
manifest that there was a clear intent on the part
of petitioners to transfer title to the buyer, but
since the transfer certificate of title was still in the
name of petitioner's father, they could not fully
effect such transfer although the buyer was then
willing and able to immediately pay the purchase
price. Therefore, petitioners-sellers undertook
upon receipt of the down payment from private
respondent Ramona P. Alcaraz, to cause the
issuance of a new certificate of title in their names
from that of their father, after which, they
promised to present said title, now in their names,
to the latter and to execute the deed of absolute
sale whereupon, the latter shall, in turn, pay the
entire balance of the purchase price.
The agreement could not have been a contract to
sell because the sellers herein made no express
reservation of ownership or title to the subject
parcel of land. Furthermore, the circumstance
which prevented the parties from entering into an
absolute contract of sale pertained to the sellers
themselves (the certificate of title was not in their
names) and not the full payment of the purchase
price. Under the established facts and
circumstances of the case, the Court may safely
presume that, had the certificate of title been in
the names of petitioners-sellers at that time, there
would have been no reason why an absolute
contract of sale could not have been executed and
consummated right there and then.
Moreover, unlike in a contract to sell, petitioners
in the case at bar did not merely promise to sell
the properly to private respondent upon the
fulfillment of the suspensive condition. On the
contrary, having already agreed to sell the subject
property, they undertook to have the certificate of
title changed to their names and immediately
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 7
thereafter, to execute the written deed of absolute
sale.
Thus, the parties did not merely enter into a
contract to sell where the sellers, after compliance
by the buyer with certain terms and conditions,
promised to sell the property to the latter. What
may be perceived from the respective
undertakings of the parties to the contract is that
petitioners had already agreed to sell the house
and lot they inherited from their father,
completely willing to transfer full ownership of the
subject house and lot to the buyer if the
documents were then in order. It just happened,
however, that the transfer certificate of title was
then still in the name of their father. It was more
expedient to first effect the change in the
certificate of title so as to bear their names. That is
why they undertook to cause the issuance of a
new transfer of the certificate of title in their
names upon receipt of the down payment in the
amount of P50,000.00. As soon as the new
certificate of title is issued in their names,
petitioners were committed to immediately
execute the deed of absolute sale. Only then will
the obligation of the buyer to pay the remainder of
the purchase price arise.
There is no doubt that unlike in a contract to sell
which is most commonly entered into so as to
protect the seller against a buyer who intends to
buy the property in installment by withholding
ownership over the property until the buyer
effects full payment therefor, in the contract
entered into in the case at bar, the sellers were the
one who were unable to enter into a contract of
absolute sale by reason of the fact that the
certificate of title to the property was still in the
name of their father. It was the sellers in this case
who, as it were, had the impediment which
prevented, so to speak, the execution of an
contract of absolute sale.
What is clearly established by the plain language
of the subject document is that when the said
"Receipt of Down Payment" was prepared and
signed by petitioners Romeo A. Coronel, et al., the
parties had agreed to a conditional contract of
sale, consummation of which is subject only to the
successful transfer of the certificate of title from
the name of petitioners' father, Constancio P.
Coronel, to their names.

The Court significantly notes this suspensive
condition was, in fact, fulfilled on February 6, 1985
(Exh. "D"; Exh. "4"). Thus, on said date, the
conditional contract of sale between petitioners
and private respondent Ramona P. Alcaraz became
obligatory, the only act required for the
consummation thereof being the delivery of the
property by means of the execution of the deed of
absolute sale in a public instrument, which
petitioners unequivocally committed themselves
to do as evidenced by the "Receipt of Down
Payment."
Article 1475, in correlation with Article 1181, both
of the Civil Code, plainly applies to the case at
bench. Thus,
Art. 1475. The contract of sale is perfected at the
moment there is a meeting of minds upon the
thing which is the object of the contract and upon
the price.
From the moment, the parties may reciprocally
demand performance, subject to the provisions of
the law governing the form of contracts.
Art. 1181. In conditional obligations, the
acquisition of rights, as well as the extinguishment
or loss of those already acquired, shall depend
upon the happening of the event which constitutes
the condition.
Since the condition contemplated by the parties
which is the issuance of a certificate of title in
petitioners' names was fulfilled on February 6,
1985, the respective obligations of the parties
under the contract of sale became mutually
demandable, that is, petitioners, as sellers, were
obliged to present the transfer certificate of title
already in their names to private respondent
Ramona P. Alcaraz, the buyer, and to immediately
execute the deed of absolute sale, while the buyer
on her part, was obliged to forthwith pay the
balance of the purchase price amounting to
P1,190,000.00.
It is also significant to note that in the first
paragraph in page 9 of their petition, petitioners
conclusively admitted that:
3. The petitioners-sellers Coronel bound
themselves "to effect the transfer in our names
from our deceased father Constancio P. Coronel,
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 8
the transfer certificate of title immediately upon
receipt of the downpayment above-stated". The
sale was still subject to this suspensive condition.
(Emphasis supplied.)
(Rollo, p. 16)
Petitioners themselves recognized that they
entered into a contract of sale subject to a
suspensive condition. Only, they contend,
continuing in the same paragraph, that:
. . . Had petitioners-sellers not complied with this
condition of first transferring the title to the
property under their names, there could be no
perfected contract of sale. (Emphasis supplied.)
(Ibid.)
not aware that they set their own trap for
themselves, for Article 1186 of the Civil Code
expressly provides that:
Art. 1186. The condition shall be deemed fulfilled
when the obligor voluntarily prevents its
fulfillment.
Besides, it should be stressed and emphasized that
what is more controlling than these mere
hypothetical arguments is the fact that
the condition herein referred to was actually and
indisputably fulfilled on February 6, 1985, when a
new title was issued in the names of petitioners as
evidenced by TCT No. 327403 (Exh. "D"; Exh. "4").
The inevitable conclusion is that on January 19,
1985, as evidenced by the document denominated
as "Receipt of Down Payment" (Exh. "A"; Exh. "1"),
the parties entered into a contract of sale subject
only to the suspensive condition that the sellers
shall effect the issuance of new certificate title
from that of their father's name to their names
and that, on February 6, 1985, this condition was
fulfilled (Exh. "D"; Exh. "4").
We, therefore, hold that, in accordance with
Article 1187 which pertinently provides
Art. 1187. The effects of conditional obligation to
give, once the condition has been fulfilled, shall
retroact to the day of the constitution of the
obligation . . .

In obligation to do or not to do, the courts shall
determine, in each case, the retroactive effect of
the condition that has been complied with.
the rights and obligations of the parties with
respect to the perfected contract of sale became
mutually due and demandable as of the time of
fulfillment or occurrence of the suspensive
condition on February 6, 1985. As of that point in
time, reciprocal obligations of both seller and
buyer arose.
Petitioners also argue there could been no
perfected contract on January 19, 1985 because
they were then not yet the absolute owners of the
inherited property.
We cannot sustain this argument.
Article 774 of the Civil Code defines Succession as a
mode of transferring ownership as follows:
Art. 774. Succession is a mode of acquisition by
virtue of which the property, rights and obligations
to be 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.
Petitioners-sellers in the case at bar being the sons
and daughters of the decedent Constancio P.
Coronel are compulsory heirs who were called to
succession by operation of law. Thus, at the point
their father drew his last breath, petitioners
stepped into his shoes insofar as the subject
property is concerned, such that any rights or
obligations pertaining thereto became binding and
enforceable upon them. It is expressly provided
that rights to the succession are transmitted from
the moment of death of the decedent (Article 777,
Civil Code; Cuison vs. Villanueva, 90 Phil. 850
[1952]).
Be it also noted that petitioners' claim that
succession may not be declared unless the
creditors have been paid is rendered moot by the
fact that they were able to effect the transfer of
the title to the property from the decedent's name
to their names on February 6, 1985.
Aside from this, petitioners are precluded from
raising their supposed lack of capacity to enter into
an agreement at that time and they cannot be
allowed to now take a posture contrary to that
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 9
which they took when they entered into the
agreement with private respondent Ramona P.
Alcaraz. The Civil Code expressly states that:
Art. 1431. Through estoppel an admission or
representation is rendered conclusive upon the
person making it, and cannot be denied or
disproved as against the person relying thereon.
Having represented themselves as the true owners
of the subject property at the time of sale,
petitioners cannot claim now that they were not
yet the absolute owners thereof at that time.
Petitioners also contend that although there was
in fact a perfected contract of sale between them
and Ramona P. Alcaraz, the latter breached her
reciprocal obligation when she rendered
impossible the consummation thereof by going to
the United States of America, without leaving her
address, telephone number, and Special Power of
Attorney (Paragraphs 14 and 15, Answer with
Compulsory Counterclaim to the Amended
Complaint, p. 2; Rollo, p. 43), for which reason, so
petitioners conclude, they were correct in
unilaterally rescinding rescinding the contract of
sale.
We do not agree with petitioners that there was a
valid rescission of the contract of sale in the
instant case. We note that these supposed
grounds for petitioners' rescission, are mere
allegations found only in their responsive
pleadings, which by express provision of the rules,
are deemed controverted even if no reply is filed
by the plaintiffs (Sec. 11, Rule 6, Revised Rules of
Court). The records are absolutely bereft of any
supporting evidence to substantiate petitioners'
allegations. We have stressed time and again that
allegations must be proven by sufficient evidence
(Ng Cho Cio vs. Ng Diong, 110 Phil. 882 [1961];
Recaro vs. Embisan, 2 SCRA 598 [1961]. Mere
allegation is not an evidence (Lagasca vs. De Vera,
79 Phil. 376 [1947]).
Even assuming arguendo that Ramona P. Alcaraz
was in the United States of America on February 6,
1985, we cannot justify petitioner-sellers' act of
unilaterally and extradicially rescinding the
contract of sale, there being no express stipulation
authorizing the sellers to extarjudicially rescind the
contract of sale. (cf. Dignos vs. CA, 158 SCRA 375

[1988]; Taguba vs. Vda. de Leon, 132 SCRA 722
[1984])
Moreover, petitioners are estopped from raising
the alleged absence of Ramona P. Alcaraz because
although the evidence on record shows that the
sale was in the name of Ramona P. Alcaraz as the
buyer, the sellers had been dealing with
Concepcion D. Alcaraz, Ramona's mother, who had
acted for and in behalf of her daughter, if not also
in her own behalf. Indeed, the down payment was
made by Concepcion D. Alcaraz with her own
personal check (Exh. "B"; Exh. "2") for and in
behalf of Ramona P. Alcaraz. There is no evidence
showing that petitioners ever questioned
Concepcion's authority to represent Ramona P.
Alcaraz when they accepted her personal check.
Neither did they raise any objection as regards
payment being effected by a third person.
Accordingly, as far as petitioners are concerned,
the physical absence of Ramona P. Alcaraz is not a
ground to rescind the contract of sale.
Corollarily, Ramona P. Alcaraz cannot even be
deemed to be in default, insofar as her obligation
to pay the full purchase price is concerned.
Petitioners who are precluded from setting up the
defense of the physical absence of Ramona P.
Alcaraz as above-explained offered no proof
whatsoever to show that they actually presented
the new transfer certificate of title in their names
and signified their willingness and readiness to
execute the deed of absolute sale in accordance
with their agreement. Ramona's corresponding
obligation to pay the balance of the purchase price
in the amount of P1,190,000.00 (as buyer) never
became due and demandable and, therefore, she
cannot be deemed to have been in default.
Article 1169 of the Civil Code defines when a party
in a contract involving reciprocal obligations may
be considered in default, to wit:
Art. 1169. Those obliged to deliver or to do
something, incur in delay from the time the
obligee judicially or extrajudicially demands from
them the fulfillment of their obligation.
xxx xxx xxx
In reciprocal obligations, neither party incurs in
delay if the other does not comply or is not ready
to comply in a proper manner with what is
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 10
incumbent upon him. From the moment one of the
parties fulfill his obligation, delay by the other
begins. (Emphasis supplied.)
There is thus neither factual nor legal basis to
rescind the contract of sale between petitioners
and respondents.
With the foregoing conclusions, the sale to the
other petitioner, Catalina B. Mabanag, gave rise to
a case of double sale where Article 1544 of the
Civil Code will apply, to wit:
Art. 1544. If the same thing should have been sold
to different vendees, the ownership shall be
transferred to the person who may have first
taken possession thereof in good faith, if it should
be movable property.
Should if be immovable property, the ownership
shall belong to the person acquiring it who in good
faith first recorded it in Registry of Property.
Should there be no inscription, the ownership shall
pertain to the person who in good faith was first in
the possession; and, in the absence thereof to the
person who presents the oldest title, provided
there is good faith.
The record of the case shows that the Deed of
Absolute Sale dated April 25, 1985 as proof of the
second contract of sale was registered with the
Registry of Deeds of Quezon City giving rise to the
issuance of a new certificate of title in the name of
Catalina B. Mabanag on June 5, 1985. Thus, the
second paragraph of Article 1544 shall apply.
The above-cited provision on double sale
presumes title or ownership to pass to the first
buyer, the exceptions being: (a) when the second
buyer, in good faith, registers the sale ahead of the
first buyer, and (b) should there be no inscription
by either of the two buyers, when the second
buyer, in good faith, acquires possession of the
property ahead of the first buyer. Unless, the
second buyer satisfies these requirements, title or
ownership will not transfer to him to the prejudice
of the first buyer.
In his commentaries on the Civil Code, an accepted
authority on the subject, now a distinguished
member of the Court, Justice Jose C. Vitug,
explains:

The governing principle is prius tempore, potior
jure (first in time, stronger in right). Knowledge by
the first buyer of the second sale cannot defeat the
first buyer's rights except when the second buyer
first registers in good faith the second sale
(Olivares vs. Gonzales, 159 SCRA 33). Conversely,
knowledge gained by the second buyer of the first
sale defeats his rights even if he is first to register,
since knowledge taints his registration with bad
faith (see also Astorga vs. Court of Appeals, G.R.
No. 58530, 26 December 1984). In Cruz
vs. Cabana (G.R. No. 56232, 22 June 1984, 129
SCRA 656), it has held that it is essential, to merit
the protection of Art. 1544, second paragraph, that
the second realty buyer must act in good faith in
registering his deed of sale (citing Carbonell vs.
Court of Appeals, 69 SCRA 99, Crisostomo vs. CA,
G.R. No. 95843, 02 September 1992).
(J. Vitug Compendium of Civil Law and
Jurisprudence, 1993 Edition, p. 604).
Petitioner point out that the notice of lis
pendens in the case at bar was annoted on the title
of the subject property only on February 22, 1985,
whereas, the second sale between petitioners
Coronels and petitioner Mabanag was supposedly
perfected prior thereto or on February 18, 1985.
The idea conveyed is that at the time petitioner
Mabanag, the second buyer, bought the property
under a clean title, she was unaware of any
adverse claim or previous sale, for which reason
she is buyer in good faith.
We are not persuaded by such argument.
In a case of double sale, what finds relevance and
materiality is not whether or not the second buyer
was a buyer in good faith but whether or not said
second buyer registers such second sale in good
faith, that is, without knowledge of any defect in
the title of the property sold.
As clearly borne out by the evidence in this case,
petitioner Mabanag could not have in good faith,
registered the sale entered into on February 18,
1985 because as early as February 22, 1985, a
notice of lis pendens had been annotated on the
transfer certificate of title in the names of
petitioners, whereas petitioner Mabanag
registered the said sale sometime in April, 1985. At
the time of registration, therefore, petitioner
Mabanag knew that the same property had
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 11
already been previously sold to private
respondents, or, at least, she was charged with
knowledge that a previous buyer is claiming title to
the same property. Petitioner Mabanag cannot
close her eyes to the defect in petitioners' title to
the property at the time of the registration of the
property.
This Court had occasions to rule that:
If a vendee in a double sale registers that sale after
he has acquired knowledge that there was a
previous sale of the same property to a third party
or that another person claims said property in a
pervious sale, the registration will constitute a
registration in bad faith and will not confer upon
him any right. (Salvoro vs. Tanega, 87 SCRA 349
[1978]; citing Palarca vs. Director of Land, 43 Phil.
146; Cagaoan vs. Cagaoan, 43 Phil. 554; Fernandez
vs. Mercader, 43 Phil. 581.)
Thus, the sale of the subject parcel of land
between petitioners and Ramona P. Alcaraz,
perfected on February 6, 1985, prior to that
between petitioners and Catalina B. Mabanag on
February 18, 1985, was correctly upheld by both
the courts below.
Although there may be ample indications that
there was in fact an agency between Ramona as
principal and Concepcion, her mother, as agent
insofar as the subject contract of sale is concerned,
the issue of whether or not Concepcion was also
acting in her own behalf as a co-buyer is not
squarely raised in the instant petition, nor in such
assumption disputed between mother and
daughter. Thus, We will not touch this issue and no
longer disturb the lower courts' ruling on this
point.
WHEREFORE, premises considered, the instant
petition is hereby DISMISSED and the appealed
judgment AFFIRMED.
SO ORDERED.
CASE NO. 3
G.R. No. L-4275 March 23, 1909

PAULA CONDE, plaintiff-appellee,
vs.
ROMAN ABAYA, defendant-appellant.
C. Oben for appellant.
L. Joaquin for appellee.
ARELLANO, C.J.:
From the hearing of the appeal interposed by
Roman Abaya in the special proceedings brought
in the Court of First Instance of La Laguna for the
settlement of the intestate estate and the
distribution of the property of Casiano Abaya it
appears:
I. As antecedents: that Casiano Abaya, unmarried,
the son of Romualdo Abaya and Sabrina Labadia,
died on the 6th of April, 1899; that Paula Conde, as
the mother of the natural children Jose and
Teopista Conde, whom the states she had by
Casiano Abaya, on the 6th of November, 1905,
moved the settlement of the said intestate
succession; that an administrator having been
appointed for the said estate on the 25th of
November, 1905, Roman Abaya, a son of the said
Romualdo Abaya and Sabrina Labadia, the parents
of the late Casiano Abaya, came forward and
opposed said appointment and claimed it for
himself as being the nearest relative of the
deceased; that this was granted by the court
below on the 9th of January, 1906; that on the
17th of November, 1906, Roman Abaya moved
that, after due process of law, the court declare
him to be the sole heir of Casiano Abaya, to the
exclusion of all other persons, especially of Paula
Conde, and to be therefore entitled to take
possession of all the property of said estate, and
that it be adjudicated to him; and that on
November 22, 1906, the court ordered the
publication of notices for the declaration of heirs
and distribution of the property of the estate.
II. That on the 28th of November, 1906, Paula
Conde, in replying to the foregoing motion of
Roman Abaya, filed a petition wherein she stated
that she acknowledged the relationship alleged by
Roman Abaya, but that she considered that her
right was superior to his and moved for a hearing
of the matter, and, in consequence of the evidence
that she intended to present she prayed that she
be declared to have preferential rights to the
property left by Casiano Abaya, and that the same
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 12
be adjudicated to her together with the
corresponding products thereof.
III. That the trial was held, both parties presenting
documentary and oral evidence, and the court
below entered the following judgment:
That the administrator of the estate of Casiano
Abaya should recognize Teopista and Jose Conde
as being natural children of Casiano Abaya; that
the petitioner Paula Conde should succeed to the
hereditary rights of her children with respect to
the inheritance of their deceased natural father
Casiano Abaya; and therefore, it is hereby declared
that she is the only heir to the property of the said
intestate estate, to the exclusion of the
administrator, Roman Abaya.
IV. That Roman Abaya excepted to the foregoing
judgment, appealed to this court, and presented
the following statement of errors:
1. The fact that the court below found that an
ordinary action for the acknowledgment of natural
children under articles 135 and 137 of the Civil
Code, might be brought in special probate
proceedings.
2. The finding that after the death of a person
claimed to be an unacknowledged natural child,
the mother of such presumed natural child, as heir
to the latter, may bring an action to enforce the
acknowledgment of her deceased child in
accordance with articles 135 and 137 of the Civil
Code.
3. The finding in the judgment that the alleged
continuos possession of the deceased children of
Paula Conde of the status of natural children of the
late Casiano Abaya, has been fully proven in these
proceedings; and
4. On the hypothesis that it was proper to
adjudicate the property of this intestate estate to
Paula Conde, as improperly found by the court
below, the court erred in not having declared that
said property should be reserved in favor of
relatives of Casiano Abaya to the third degree, and
in not having previously demanded securities from
Paula Conde to guarantee the transmission of the
property to those who might fall within the
reservation.

As to the first error assigned, the question is set up
as to whether in special proceedings for the
administration and distribution of an intestate
estate, an action might be brought to enforce the
acknowledgment of the natural child of the person
from whom the inheritance is derived, that is to
say, whether one might appear as heir on the
ground that he is a recognized natural child of the
deceased, not having been so recognized by the
deceased either voluntarily or compulsorily by
reason of a preexisting judicial decision, but asking
at the same time that, in the special proceeding
itself, he be recognized by the presumed
legitimate heirs of the deceased who claim to be
entitled to the succession opened in the special
proceeding.
According to section 782 of the Code of Civil
Procedure
If there shall be a controversy before the Court of
First Instance as to who the lawful heirs of the
deceased person are, or as to the distributive
share to which each person is entitled under the
law, the testimony as to such controversy shall be
taken in writing by the judge, under oath, and
signed by the witness. Any party in interest whose
distributive share is affected by the determination
of such controversy, may appeal from the
judgment of the Court of First Instance
determining such controversy to the Supreme
Court, within the time and in the manner provided
in the last preceding section.
This court has decided the present question in the
manner shown in the case of Juana Pimentel vs.
Engracio Palanca (5 Phil. Rep., 436.)
The main question with regard to the second error
assigned, is whether or not the mother of a natural
child now deceased, but who survived the person
who, it is claimed, was his natural father, also
deceased, may bring an action for the
acknowledgment of the natural filiation in favor of
such child in order to appear in his behalf to
receive the inheritance from the person who is
supposed to be his natural father.
In order to decide in the affirmative the court
below has assigned the following as the only
foundation:
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 13
In resolving a similar question Manresa says: "An
acknowledgment can only be demanded by the
natural child and his descendants whom it shall
benefit, and should they be minors or otherwise
incapacitated, such person as legally represents
them; the mother may ask it in behalf of her child
so long as he is under her authority." On this point
no positive declaration has been made,
undoubtedly because it was not considered
necessary. A private action is in question and the
general rule must be followed. Elsewhere the
same author adds: "It may so happen that the
child dies before four years have expired after
attaining majority, or that the document
supporting his petition for acknowledgment is
discovered after his death, such death perhaps
occurring after his parents had died, as is supposed
by article 137, or during their lifetime. In any case
such right of action shall pertain to the
descendants of the child whom the
acknowledgment may interest." (See
Commentaries to arts. 135 and 137, Civil Code, Vol.
I.)
The above doctrine, advanced by one of the most
eminent commentators of the Civil Code, lacks
legal and doctrinal foundation. The power to
transmit the right of such action by the natural
child to his descendants can not be sustained
under the law, and still less to his mother.
It is without any support in law because the rule
laid down in the code is most positive, limiting in
form, when establishing the exception for the
exercise of such right of action after the death of
the presumed parents, as is shown hereafter. It is
not supported by any doctrine, because up to the
present time no argument has been presented,
upon which even an approximate conclusion could
be based.
Although the Civil Code considerably improved the
condition of recognized natural children, granting
them rights and actions that they did not possess
under the former laws, they were not, however,
placed upon the same place as legitimate ones.
The difference that separates these two classes of
children is still great, as proven by so many articles
dealing with the rights of the family and the
succession in relation to the members thereof. It
may be laid down as legal maxim, that whatever
the code does not grant to the legitimate children,

or in connection with their rights, must still less be
understood as granted to recognized natural
children or in connection with their rights. There is
not a single exception in its provisions.
If legitimacy is the attribute that constitutes the
basis of the absolute family rights of the child, the
acknowledgment of the natural child is, among
illegitimate ones, that which unites him to the
family of the father or the mother who recognized
him, and affords him a participation in the rights of
the family, relatively advantageous according to
whether they are alone or whether they concur
with other individuals of the family of his purely
natural father or mother.
Thus, in order to consider the spirit of the Civil
Code, nothing is more logical than to establish a
comparison between an action to claim the
legitimacy, and one to enforce acknowledgment.
ART. 118. The action to claim its legitimacy may be
brought by the child at any time of its lifetime and
shall be transmitted to its heirs, should it die
during minority or in a state of insanity. In such
cases the heirs shall be allowed a period of five
years in which to institute the action.
The action already instituted by the child is
transmitted by its death to the heirs, if it has not
lapsed before then.
ART. 137. The actions for the acknowledgment of
natural children can be instituted only during the
life of the presumed parents, except in the
following cases:
1. If the father or mother died during the maturity
of the child, in which case the latter may institute
the action before the expiration of the first four
years of its maturity.
2. If, after the death of the father or mother, some
instrument, before unknown, should be discovered
in which the child is expressly acknowledged.
In this case the action must be instituted with the
six months following the discovery of such
instrument.
On this supposition the first difference that results
between one action and the other consists in that
the right of action for legitimacy lasts during the
whole lifetime of the child, that is, it can always be
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 14
brought against the presumed parents or their
heirs by the child itself, while the right of action for
the acknowledgment of a natural child does not
last his whole lifetime, and, as a general rule, it can
not be instituted against the heirs of the presumed
parents, inasmuch as it can be
exercised only during the life of the presumed
parents.
With regard to the question at issue, that is, the
transmission to the heirs of the presumed parents
of the obligation to admit the legitimate filiation,
or to recognize the natural filiation, there exists
the most radical difference in that the former
continues during the life of the child who claims to
be legitimate, and he may demand it either
directly and primarily from the said presumed
parents, or indirectly and secondarily from the
heirs of the latter; while the second does not
endure for life; as a general rule, it only lasts
during the life of the presumed parents. Hence the
other difference, derived as a consequence, that
an action for legitimacy is always brought against
the heirs of the presumed parents in case of the
death of the latter, while the action for
acknowledgment is not brought against the heirs
of such parents, with the exception of the two
cases prescribed by article 137 transcribed above.
So much for the passive transmission of the
obligation to admit the legitimate filiation, or to
acknowledge the natural filiation.
As to the transmission to the heirs of the child of
the latter's action to claim his legitimacy, or to
obtain the acknowledgment of his natural filiation,
it is seen that the code grants it in the first case,
but not in the second. It contains provisions for the
transmission of the right of action which, for the
purpose claiming his legitimacy inheres in the
child, but it does not say a word with regard to the
transmission of the right to obtain the
acknowledgment of the natural filiation.
Therefore, the respective corollary of each of the
two above-cited articles is: (1) That the right of
action which devolves upon the child to claim his
legitimacy under article 118, may be transmitted
to his heirs in certain cases designated in the said
article; (2) That the right of action for the
acknowledgment of natural children to which
article 137 refers, can never be transmitted, for the

reason that the code makes no mention of it in any
case, not even as an exception.
It is most illogical and contrary to every rule of
correct interpretation, that the right of action to
secure acknowledgment by the natural child
should be presumed to be transmitted,
independently, as a rule, to his heirs, while the
right of action to claim legitimacy from his
predecessor is not expressly, independently, or, as
a general rule, conceded to the heirs of the
legitimate child, but only relatively and as an
exception. Consequently, the pretension that the
right of action on the part of the child to obtain the
acknowledgment of his natural filiation is
transmitted to his descendants is altogether
unfounded. No legal provision exists to sustain
such pretension, nor can an argument of
presumption be based on the lesser claim when
there is no basis for the greater one, and when it is
only given as an exception in well-defined cases. It
is placing the heirs of the natural child on a better
footing than the heirs of the legitimate one, when,
as a matter of fact, the position of a natural child is
no better than, no even equal to, that of a
legitimate child.
From the express and precise precepts of the code
the following conclusions are derived:
The right of action that devolves upon the child to
claim his legitimacy lasts during his whole life,
while the right to claim the acknowledgment of a
natural child lasts only during the life of his
presumed parents.
Inasmuch as the right of action accruing to the
child to claim his legitimacy lasts during his whole
life, he may exercise it either against the presumed
parents, or their heirs; while the right of action to
secure the acknowledgment of a natural child,
since it does not last during his whole life, but
depends on that of the presumed parents, as a
general rule can only be exercised against the
latter.
Usually the right of action for legitimacy devolving
upon the child is of a personal character and
pertains exclusively to him, only the child may
exercise it at any time during his lifetime. As an
exception, and in three cases only, it may be
transmitted to the heirs of the child, to wit, if he
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 15
died during his minority, or while insane, or after
action had been already instituted.
An action for the acknowledgment of a natural
child may, as an exception, be exercised against
the heirs of the presumed parents in two cases:
first, in the event of the death of the latter during
the minority of the child, and second, upon the
discovery of some instrument of express
acknowledgment of the child, executed by the
father or mother, the existence of which was
unknown during the life of the latter.
But such action for the acknowledgment of a
natural child can only be exercised by him. It can
not be transmitted to his descendants, or his
ascendants.
In support of the foregoing the following
authorities may be cited:
Sanchez Roman, in his Treatise of Civil Law,
propounds the question as to whether said action
should be considered transmissive to the heirs or
descendants of the natural child, whether he had
or had not exercised it up to the time of his death,
and decides it as follows:
There is an entire absence of legal provisions, and
at most, it might be deemed admissible as a
solution, that the right of action to claim the
acknowledgment of a natural child is transmitted
by the analogy to his heirs on the same conditions
and terms that it is transmitted to the descendants
of a legitimate child, to claim his legitimacy, under
article 118, but nothing more; because on this
point nothing warrants placing the heirs of a
natural child on a better footing than those of the
legitimate child, and even to compare them would
not fail to be a strained and questionable matter,
and one of great difficulty for decision by the
courts, for the simple reason that for the heirs of
the legitimate child, the said article 118 exists,
while for those of the natural child, as we have
said, there is no provision in the code authorizing
the same, although on the other hand there is
none that prohibits it. (Vol. V.)
Diaz Guijarro and Martinez Ruiz in their work on
"The Civil Code as construed by the supreme court
of Spain," commenting upon article 137, say:

Article 118, taking into account the privileges due
to the legitimacy of children, grants them the right
to claim said legitimacy during their lifetime, and
even authorizes the transmission of said right for
the space of five years to the heirs thereof, if the
child die during his minority or in a state of
insanity. But as article 137 is based on the
consideration that in the case of a natural child,
ties are less strong and sacred in the eyes of the
law, it does not fix such a long and indefinite
period for the exercise of the action; it limits it to
the life of the parents, excepting in the two cases
mentioned in said article; and it does not allow, as
does article 118, the action to pass on to the heirs,
inasmuch as, although it does not prohibit it, and
for that reason it might be deemed on general
principles of law to consent to it, such a
supposition is inadmissible for the reason that a
comparison of both articles shows that the silence
of the law in the latter case is not, nor it can be, an
omission, but a deliberate intent to establish a
wide difference between the advantages granted
to a legitimate child and to a natural one.
(Ibid., Vol. II, 171.)
Navarro Amandi (Cuestionario del Cdigo Civil)
raises the question: "Can the heirs of a natural
child claim the acknowledgment in those cases
wherein the father or mother are under obligation
to acknowledge"? And says:
Opinions are widely divergent. The court of Rennes
held (on April 13, 1844) that the right of
investigation forms a part of the estate of the
child, and along with his patrimony is transmitted
to his heirs. The affirmation is altogether too
categorical to be admissible. If it were correct the
same thing would happen as when the legitimacy
of a child is claimed, and as already seen, the right
of action to demand the legitimacy is not
transmitted to the heirs in every case and as an
absolute right, but under certain limitations and
circumstances. Now, were we to admit the
doctrine of the court of Rennes, the result would
be that the claim for natural filiation would be
more favored than one for legitimate filiation. This
would be absurd, because it can not be conceived
that the legislator should have granted a right of
action to the heirs of the natural child, which is
only granted under great limitations and in very
few cases to those of a legitimate one. Some
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 16
persons insist that the same rules that govern
legitimate filiation apply by analogy to natural
child are entitled to claim it in the cases prescribed
by the article 118. The majority, however, are
inclined to consider the right to claim
acknowledgment as a personal right, and
consequently, not transmissive to the heirs. Really
there are no legal grounds to warrant the
transmission. (Vol. 2, 229.)
In a decision like the present one it is impossible to
bring forward the argument of analogy for the
purpose of considering that the heirs of the natural
child are entitled to the right of action which
article 118 concedes to the heirs of the legitimate
child. The existence of a provision for the one case
and the absence thereof for the other is a
conclusive argument that inclusio unius est
exclusio alterius, and it can not be understood that
the provision of law should be the same when the
same reason does not hold in the one case as in
the other.
The theory of law of transmission is also entirely
inapplicable in this case. This theory, which in the
Roman Law expressed the general rule than an
heir who did not accept an inheritance during his
lifetime was incapacitated from transmitting it to
his own heirs, included at the same time the idea
that if the inheritance was not transmitted
because the heir did not possess it, there were,
however, certain things which the heir held and
could transmit. Such was the law and the right to
accept the inheritance, for the existing reason that
all rights, both real and personal, shall pass to the
heir; quia haeres representat defunctum in
omnibus et per omnia. According to the article 659
of the Civil Code, "the inheritance includes all the
property, rights, and obligations of a person, which
are not extinguished by his death." If the mother is
the heir of her natural child, and the latter, among
other rights during his lifetime was entitled to
exercise an action of his acknowledgment against
his father, during the life of the latter, if after his
death in some of the excepting cases of article 137,
such right, which is a portion of his inheritance, is
transmitted to his mother as being his heir, and it
was so understood by the court of Rennes when it
considered the right in question, not as a personal
and exclusive right of the child which is
extinguished by his death, but a any other right
which might be transmitted after his death. This

right of supposed transmission is even less tenable
than that sought to be sustained by the argument
of analogy.
The right of action pertaining to the child to claim
his legitimacy is in all respects superior to that of
the child who claims acknowledgment as a natural
child. And it is evident that the right of action to
claim his legitimacy is not one of those rights
which the legitimate child may transmit by
inheritance to his heirs; it forms no part of the
component rights of his inheritance. If it were so,
there would have been no necessity to establish its
transmissibility to heirs as an exception in the
terms and conditions of article 118 of the code. So
that, in order that it may constitute a portion of
the child's inheritance, it is necessary that the
conditions and the terms contained in article 118
shall be present, since without them, the right that
the child held during his lifetime, being personal
and exclusive in principle, and therefore, as a
general rule not susceptible of transmission, would
and should have been extinguished by his death.
Therefore, where no express provision like that of
article 118 exists, the right of action for the
acknowledgment of a natural child is, in principle
and without exception, extinguished by his death,
and can not be transmitted as a portion of the
inheritance of the deceased child.
On the other hand, if said right of action formed a
part of the child's inheritance, it would be
necessary to establish the doctrine that the right
to claim such an acknowledgment from the
presumed natural father and from his heirs is an
absolute right of the heirs of the child, not limited
by certain circumstances as in the case of the heirs
of a natural child with a legitimate one to place the
heirs of a natural child and his inheritance on a
better footing than those of a legitimate child
would not only be unreasonable, but, as stated in
one of the above citations, most absurd and illegal
in the present state of the law and in accordance
with the general principles thereof.
For all of the foregoing reasons we hereby reverse
the judgment appealed from in all its parts,
without any special ruling as to the costs of this
instance.
Mapa, Johnson, Carson, and Willard, JJ., concur.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 17
Separate Opinions
TORRES, J., dissenting:
The questions arising from the facts and points of
law discussed in this litigation between the parties
thereto, decided in the judgment appealed from,
and set up and discussed in this instance by the
said parties in their respective briefs, are
subordinate in the first place to the main point,
submitted among others to the decision of this
court, that is, whether the right of action brought
to demand from the natural father, or from his
heirs, the acknowledgment of the natural child
which the former left at his death was, by
operation of the law, transmitted to the natural
mother by reason of the death of the said child
acknowledged by her.
The second error assigned by the appellant in his
brief refers exclusively to this important point of
law.
Article 846 of the Civil Code prescribes:
The right of succession which the law grants
natural children extends reciprocally in similar
cases to the natural father or mother.
Article 944 reads:
If the acknowledged natural or legitimized child
should die without issue, either legitimate or
acknowledged by it, the father or mother who
acknowledged it shall succeed to its entire estate,
and if both acknowledged it and are alive, they
shall inherit from it share and share alike.
It can not be inferred from the above legal
provisions that from the right succession which the
law grants the natural father or mother upon the
death of their natural child, the right of heirs of
any of the said parents to claim the
acknowledgment of the natural child is excluded.
No article is to be found in the Civil Code that
expressly provides for such exclusion or
elimination of the right of the heirs of the
deceased child to claim his acknowledgment.
If under article 659 of said code, the inheritance
includes all the property, rights, and obligations of

a person, which are not extinguished by his death,
it is unquestionable that among such rights stands
that which the natural child had, while alive, to
claim his acknowledgment as such from his natural
father, or from the heirs of the latter. There is no
reason or legal provision whatever to prevent the
consideration that the right to claim
acknowledgment of the filiation of a deceased
child from his natural father, or from the heirs of
the latter, is included in the hereditary succession
of the deceased child in favor of his natural
mother.
It is to be regretted that such an eminent writer as
Manresa is silent on this special point, or that he is
not very explicit in his comments on article 137 of
the Civil Code. Among the various noted writers on
law, Professor Sanchez Roman is the only one who
has given his opinion in a categorical manner as to
whether or not the right of action for the
acknowledgment of a deceased natural child shall
be considered transmissive to his heirs, as may bee
seen from the following:
In order to complete the explanation of this article
137 of the Civil Code, three points must be
decided: (1) Against whom shall an action for
acknowledgment be brought under the cases and
terms to which the two exceptions indicate in
paragraphs 1 and 2 of article 137 refer? (2) Who is
to represent the minor in bringing this action when
neither the father nor the mother has
acknowledged him? (3) Should this right of action
be considered as transmitted to the heirs or
descendants of the natural child whether or not it
was exercised at the time of his death?
With respect to the third, there is an entire
absence of legal provisions, and at most, it might
be deemed admissible as a solution, that the right
of action to claim acknowledgment of a natural
child is transmitted by analogy to his heirs on the
same conditions and terms that it is transmitted to
the descendants of the legitimate child, to claim
his legitimacy, under article 118, but no more;
because on his point nothing warrants placing the
heirs of a natural child on a better footing than
those of the legitimate child, and even to compare
them would not fail to be strained and
questionable matter, and one of great difficulty for
decision by the courts, for the simple reason that
for the heirs of the legitimate child the said article
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 18
118 exists, while for those of the natural child, as
we have said, there is no provision in the code
authorizing the same, although on the other hand
there is none that prohibits it.
Certainly there is no article in the Civil Code, or any
special law that bars the transmission to the heirs
of a natural child, particularly to his natural
mother, of the right of action to claim the
acknowledgment of said natural child from the
heirs of his deceased natural father.
According to the above-cited article 944 of the Civil
Code, the only persons designated to succeed to
the intestate estate of a natural child who died
during minority or without issue are its natural
father or mother who acknowledged it;
consequently if by operation of the law his parents
are his legal successors or heirs, it is
unquestionable that by reason of the child's death
the property, rights, and obligations of the
deceased minor were, as a matter of fact,
transmitted to them, among which was the right
to demand the acknowledgment of the said
deceased natural child from the heirs of the
deceased natural father or mother, respectively,
on account of having enjoyed uninterruptedly the
status of natural child of the said deceased
parents. (Arts. 135 and 136, Civil Code.)
At the death of the children, Teopista in 1902, and
Jose in 1903, during their minority, and after the
death of their natural father which took place in
1899, the natural mother of the said minors, Paula
Conde, succeeded them in all of their property and
rights, among which must necessarily appear and
be included the right of action to claim the
acknowledgment of said two children from the
heirs of Icasiano Abaya, their deceased natural
father. There is no legal provision or precept
whatever excluding such right from those which,
by operation of the law, were transmitted to the
mother, Paula Conde, or expressly declaring that
the said right to claim such acknowledgment is
extinguished by the death of the natural children.
It is true that, as a general rule, an action for
acknowledgment can not be brought by a surviving
natural child after the death of his parents, except
in the event he was a minor at the time of the
death of either of his parents, as was the case with
minors Teopista and Jose Conde, who, if living,

would unquestionably be entitled to institute an
action for acknowledgment against the presumed
heirs of their natural father; and as there is no law
that provides that said right is extinguished by the
death of the same, and that the mother did not
inherit it from the said minors, it is also
unquestionable that Paula Conde, the natural
mother and successor to the rights of said minors,
is entitled to exercise the corresponding action for
acknowledgment.
If the natural mother had no right of action against
the heirs of the natural father, for the
acknowledgment for her natural child, the
unlimited and unconditional reciprocity
established by the article 846 of the code would
neither be true nor correct. It should be noticed
that the relation of paternity and that of filiation
between the above-mentioned father and children
are both natural in character; therefore, the
intestate succession of the said children of Paula
Conde is governed exclusively by articles 944 and
945 of the said code.
It is true that nothing is provided by article 137
with reference to the transmission to the natural
mother of the right to claim the acknowledgment
of her natural children, but, as Sanchez Roman
says, it does not expressly prohibit it; and as
opposed to the silence of the said article, we find
the provisions of articles 846 and 944 of the Civil
Code, which expressly recognize the right of the
natural mother to succeed her natural child, a right
which is transmitted to her by operation of law
from the moment that the child ceases to exist.
The question herein does not bear upon the right
of a child to claim his legitimacy, as provided in
article 118 of the code, nor is it claimed that the
rights of natural children and their mother are
equal to those of legitimate ones, even by analogy.
The foundations of this opinion are based solely on
the provisions of the above-mentioned articles of
the code, and I consider that they are sustainable
so long as it is not positively proven that the so
often-mentioned right of action for
acknowledgment is extinguished by the death of
the minor natural child, and is not transmitted to
the natural mother by express declaration or
prohibition of the law, together with the property
and other rights in the intestate succession.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 19
In view of the considerations above set forth it is
my opinion that it should be held: that Paula
Conde, as the natural mother and sole heir of her
children Teopista and Jose, was and is entitled to
the right to institute proceedings to obtain the
acknowledgment of the latter as natural children
of the late Icasiano Abaya, from Roman Abaya, as
heir and administrator of the estate of the said
Icasiano Abaya; and that the said Teopista and
Jose who died during their minority, three years
after the death of their father, should be
considered and acknowledged as such natural
children of the latter, for the reason that while
living they uninterruptedly enjoyed the status of
his natural children. The judgment appealed from
should be affirmed without any special ruling as to
costs.
With regard to the declaration that the property of
the late Icasiano, which Paula Conde might take,
are of a reservable character, together with the
other matter contained in the third error assigned
by the appellant to the said judgment, the writer
withholds his opinion until such time as the
question may be raised between the parties in
proper form.
CASE NO. 4
G.R. No. L-44837 November 23, 1938
SOCORRO LEDESMA and ANA QUITCO
LEDESMA, plaintiffs-appellees,
vs.
CONCHITA MCLACHLIN, ET AL., defendants-
appellants.
Adriano T. de la Cruz for appellants.
Simeon Bitanga for appellees.
VILLA-REAL, J.:
This case is before us by virtue of an appeal taken
by the defendants Conchita McLachlin, Lorenzo
Quitco, Jr., Sabina Quitco, Rafael Quitco and
Marcela Quitco, from the decision of the Court of
First Instance of Occidental Negros, the dispositive
part of which reads:

For the foregoing considerations, the court renders
judgment in this case declaring Ana Quitco
Ledesma an acknowledged natural daughter of the
deceased Lorenzo M. Quitco, for legal purposes,
but absolving the defendants as to the prayer in
the first cause of action that the said Ana Quitco
Ledesma be declared entitled to share in the
properties left by the deceased Eusebio Quitco.
As to the second cause of action, the said
defendants are ordered to pay to the plaintiff
Socorro Ledesma, jointly and severally, only the
sum of one thousand five hundred pesos(P1,500),
with legal interest thereon from the filing of this
complaint until fully paid. No pronouncement is
made as to the costs. So ordered.
In support of their appeal, the appellants assign
the following errors allegedly committed by the
trial court in its aforesaid decision:
1. That the trial court erred in holding, that the
action for the recovery of the sum of P1,500,
representing the last installment of the note
Exhibit C has not yet prescribed.
2. That the trial court erred in holding that the
property inherited by the defendants from their
deceased grandfather by the right of
representation is subject to the debts and
obligations of their deceased father who died
without any property whatsoever.lawphi1.net
3. That the trial court erred in condemning the
defendants to pay jointly and severally the plaintiff
Socorro Ledesma the sum of P1,500.
The only facts to be considered in the
determination of the legal questions raised in this
appeal are those set out in the appealed decision,
which have been established at the trial, namely:
In the year 1916, the plaintiff Socorro Ledesma
lived maritally with Lorenzo M. Quitco, while the
latter was still single, of which relation, lasting
until the year 1921, was born a daughter who is
the other plaintiff Ana Quitco Ledesma. In 1921, it
seems hat the relation between Socorro Ledesma
and Lorenzo M. Quitco came to an end, but the
latter executed a deed (Exhibit A), acknowledging
the plaintiff Ana Quitco Ledesma as his natural
daughter and on January 21, 1922, he issued in
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 20
favor of the plaintiff Socorro Ledesma a
promissory note (Exhibit C), of the following tenor:
P2,000. For value received I promise to pay Miss
Socorro Ledesma the sum of two thousand pesos
(P2,000). Philippine currency under the following
terms: Two hundred and fifty pesos (P250) to be
paid on the first day of March 1922; another two
hundred and fifty pesos (P250)to be paid on the
first day of November 1922; the remaining
one thousand and five hundred (P1,500) to be paid
two years from the date of the execution of this
note. San Enrique, Occ. Negros, P. I., Jan. 21, 1922.
Subsequently, Lorenzo M. Quitco married the
defendant Conchita McLachlin, with whom he had
four children, who are the other defendants. On
March 9, 1930, Lorenzo M. Quitco died (Exhibit 5),
and, still later, that is, on December 15, 1932, his
father Eusebio Quitco also died, and as the latter
left real and personal properties upon his death,
administration proceedings of said properties were
instituted in this court, the said case being known
as the "Intestate of the deceased Eusebio Quitco,"
civil case No. 6153 of this court.
Upon the institution of the intestate of the
deceased Eusebio Quitco and the appointment of
the committee on claims and appraisal, the
plaintiff Socorro Ledesma, on August 26, 1935,
filed before said committee the aforequoted
promissory note for payment, and the
commissioners, upon receipt of said promissory
note, instead of passing upon it, elevated the same
to this court en consulta (Exhibit F), and as the
Honorable Jose Lopez Vito, presiding over the First
Branch, returned said consulta and refrained from
giving his opinion thereon (Exhibit C), the aforesaid
commissioners on claims and appraisal, alleging
lack of jurisdiction to pass upon the claim, denied
he same (Exhibit H).
On November 14, 1933 (Exhibit I), the court
issued an order of declaration of heirs in the
intestate of the deceased Eusebio Quitco, and as
Ana Quitco Ledesma was not included among the
declared heirs, Socorro Ledesma, as mother of Ana
Quitco Ledesma, asked for the reconsideration of
said order, a petition which the court denied. From
the order denying the said petition no appeal was
taken, and in lieu thereof there was filed the
complaint which gives rise to this case.

The first question to be decided in this appeal,
raised in the first assignment of alleged error, is
whether or not the action to recover the sum of
P1,500, representing the last installment for the
payment of the promissory note Exhibit C, has
prescribed.
According to the promissory note Exhibit C,
executed by the deceased Lorenzo M. Quitco, on
January 21, 1922, the last installment of P1,500
should be paid two years from the date of the
execution of said promissory note, that is, on
January 21, 1924. The complaint in the present
case was filed on June 26, 1934, that is, more than
ten years after he expiration of the said period.
The fact that the plaintiff Socorro Ledesma filed
her claim, on August 26, 1933, with the committee
on claims and appraisal appointed in the intestate
of Eusebio Quitco, does not suspend the running of
the prescriptive period of the judicial action for the
recovery of said debt, because the claim for the
unpaid balance of the amount of the promissory
note should no have been presented in the
intestate of Eusebio Quitco, the said deceased not
being the one who executed the same, but in the
intestate of Lorenzo M. Quitco, which should have
been instituted by the said Socorro Ledesma as
provided in section 642 of the Code of Civil
Procedure, authorizing a creditor to institute said
case through the appointment of an administrator
for the purpose of collecting his credit. More than
ten years having thus elapsed from the expiration
of the period for the payment of said debt of
P1,500, the action for its recovery has prescribed
under section 43, No. 1, of the Code of Civil
Procedure.
The first assignment of alleged error is, therefore,
well-founded.
As to the second assignment of alleged error,
consisting in that the trial court erred in holding
that the properties inherited by the defendants
from their deceased grandfather by representation
are subject to the payment of debts and
obligations of their deceased father, who died
without leaving any property, while it is true that
under the provisions of articles 924 to 927 of the
Civil Code, a children presents his father or mother
who died before him in the properties of his
grandfather or grandmother, this right of
representation does not make the said child
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 21
answerable for the obligations contracted by his
deceased father or mother, because, as may be
seen from the provisions of the Code of Civil
Procedure referring to partition of inheritances,
the inheritance is received with the benefit of
inventory, that is to say, the heirs only answer
with the properties received from their
predecessor. The herein defendants, as heirs of
Eusebio Quitco, in representation of their father
Lorenzo M. Quitco, are not bound to pay the
indebtedness of their said father from whom they
did not inherit anything.
The second assignment of alleged error is also
well-founded.
Being a mere sequel of the first two assignments
of alleged errors, the third assignment of error is
also well-founded.
For the foregoing considerations, we are of the
opinion and so hold: (1) That the filing of a claim
before the committee on claims and appraisal,
appointed in the intestate of the father, for a
monetary obligation contracted by a son who died
before him, does not suspend the prescriptive
period of the judicial action for the recovery of
said indebtedness; (2) that the claim for the
payment of an indebtedness contracted by a
deceased person cannot be filed for its collection
before the committee on claims and appraisal,
appointed in the intestate of his father, and the
propertiesinherited from the latter by the children
of said deceased do not answer for the payment of
the indebtedness contracted during the lifetime of
said person.
Wherefore, the appealed judgment is reversed,
and the defendants are absolved from the
complaint, with the costs to the appellees. So
ordered.
CASE NO. 5
G.R. No. L-770 April 27, 1948
ANGEL T. LIMJOCO, petitioner,
vs.
INTESTATE ESTATE OF PEDRO O. FRAGRANTE,
deceased, respondent.

Angel Limjoco, Jr. and Delfin L. Gonzales for
petitioner.
Bienvenido A. Tan for respondent.
HILADO, J.:
Under date of May 21, 1946, the Public Service
Commission, through Deputy Commissioner Fidel
Ibaez, rendered its decision in case No. 4572 of
Pedro O. Fragante, as applicant for a certificate of
public convenience to install, maintain and
operate an ice plant in San Juan, Rizal, whereby
said commission held that the evidence therein
showed that the public interest and convenience
will be promoted in a proper and suitable manner
"by authorizing the operation and maintenance of
another ice plant of two and one-half (2-) tons in
the municipality of San Juan; that the original
applicant Pedro O. Fragante was a Filipino Citizen
at the time of his death; and that his intestate
estate is financially capable of maintaining the
proposed service". The commission, therefore,
overruled the opposition filed in the case and
ordered "that under the provisions of section 15 of
Commonwealth Act No. 146, as amended a
certificate of public convenience be issued to the
Intestate Estate of the deceased Pedro Fragante,
authorizing said Intestate Estate through its
Special or Judicial Administrator, appointed by the
proper court of competent jurisdiction, to
maintain and operate an ice plant with a daily
productive capacity of two and one-half (2-1/2)
tons in the Municipality of San Juan and to sell the
ice produced from said plant in the said
Municipality of San Juan and in the Municipality of
Mandaluyong, Rizal, and in Quezon City", subject
to the conditions therein set forth in detail
(petitioner's brief, pp. 33-34).
Petitioner makes four assignments of error in his
brief as follows:
1. The decision of the Public Service Commission is
not in accordance with law.
2. The decision of the Public Service Commission is
not reasonably supported by evidence.
3. The Public Service Commission erred in not
giving petitioner and the Ice and Cold Storage
Industries of the Philippines, Inc., as existing
operators, a reasonable opportunity to meet the
increased demand.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 22
4. The decision of the Public Service Commission is
an unwarranted departure from its announced
policy with respect to the establishment and
operation of ice plant. (Pp. 1-2, petitioner's brief.)
In his argument petitioner contends that it was
error on the part of the commission to allow the
substitution of the legal representative of the
estate of Pedro O. Fragante for the latter as party
applicant in the case then pending before the
commission, and in subsequently granting to said
estate the certificate applied for, which is said to
be in contravention of law.
If Pedro O. Fragante had not died, there can be no
question that he would have had the right to
prosecute his application before the commission
to its final conclusion. No one would have denied
him that right. As declared by the commission in
its decision, he had invested in the ice plant in
question P 35,000, and from what the commission
said regarding his other properties and business,
he would certainly have been financially able to
maintain and operate said plant had he not died.
His transportation business alone was netting him
about P1,440 a month. He was a Filipino citizen
and continued to be such till his demise. The
commission declared in its decision, in view of the
evidence before it, that his estate was financially
able to maintain and operate the ice plant. The
aforesaid right of Pedro O. Fragante to prosecute
said application to its conclusion was one which by
its nature did not lapse through his death. Hence,
it constitutes a part of the assets of his estate, for
which a right was property despite the possibility
that in the end the commission might have denied
application, although under the facts of the case,
the commission granted the application in view of
the financial ability of the estate to maintain and
operate the ice plant. Petitioner, in his
memorandum of March 19, 1947, admits (page 3)
that the certificate of public convenience once
granted "as a rule, should descend to his estate as
an asset". Such certificate would certainly be
property, and the right to acquire such a
certificate, by complying with the requisites of the
law, belonged to the decedent in his lifetime, and
survived to his estate and judicial administrator
after his death.
If Pedro O. Fragrante had in his lifetime secured an
option to buy a piece of land and during the life of

the option he died, if the option had been given
him in the ordinary course of business and not out
of special consideration for his person, there
would be no doubt that said option and the right
to exercise it would have survived to his estate and
legal representatives. In such a case there would
also be the possibility of failure to acquire the
property should he or his estate or legal
representative fail to comply with the conditions
of the option. In the case at bar Pedro O.
Fragrante's undoubted right to apply for and
acquire the desired certificate of public
convenience the evidence established that the
public needed the ice plant was under the law
conditioned only upon the requisite citizenship
and economic ability to maintain and operate the
service. Of course, such right to acquire or obtain
such certificate of public convenience was subject
to failure to secure its objective through
nonfulfillment of the legal conditions, but the
situation here is no different from the legal
standpoint from that of the option in the
illustration just given.
Rule 88, section 2, provides that the executor or
administrator may bring or defend actions, among
other cases, for the protection of the property or
rights of the deceased which survive, and it says
that such actions may be brought or defended "in
the right of the deceased".
Rule 82, section 1, paragraph (a), mentions among
the duties of the executor or administrator, the
making of an inventory of all goods,
chattels, rights, credits, and estate of the deceased
which shall come to his possession or knowledge,
or to the possession of any other person for him.
In his commentaries on the Rules of Court (Volume
II, 2nd ed., pages 366, 367) the present chief
Justice of this Court draws the following conclusion
from the decisions cited by him:
Therefore, unless otherwise expressly provided by
law, any action affecting the property
or rights (emphasis supplied) of a deceased person
which may be brought by or against him if he were
alive, may likewise be instituted and prosecuted
by or against the administrator, unless the action
is for recovery of money, debt or interest thereon,
or unless, by its very nature, it cannot survive,
because death extinguishes the right . . . .
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 23
It is true that a proceeding upon the application
for a certificate of public convenience before the
Public Service Commission is not an "action". But
the foregoing provisions and citations go to prove
that the decedent's rights which by their nature
are not extinguished by death go to make up a part
and parcel of the assets of his estate which, being
placed under the control and management of the
executor or administrator, can not be exercised
but by him in representation of the estate for the
benefit of the creditors, devisees or legatees, if
any, and the heirs of the decedent. And if the right
involved happens to consist in the prosecution of
an unfinished proceeding upon an application for a
certificate of public convenience of the deceased
before the Public Service Commission, it is but
logical that the legal representative be empowered
and entitled in behalf of the estate to make the
right effective in that proceeding.
Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of
article 334 and article 336 of the Civil Code,
respectively, consider as immovable and movable
things rights which are not material. The same
eminent commentator says in the cited volume (p.
45) that article 336 of the Civil Code has been
deficiently drafted in that it is not sufficiently
expressive of all incorporeal rights which are
also property for juridical purposes.
Corpus Juris (Vol. 50, p. 737) states that in the
broad sense of the term, property includes, among
other things, "an option", and "the certificate of
the railroad commission permitting the operation
of a bus line", and on page 748 of the same volume
we read:
However, these terms (real property, as estate or
interest) have also been declared to include every
species of title, inchoate or complete, and
embrace rights which lie in contract, whether
executory or executed. (Emphasis supplied.)
Another important question raised by petitioner is
whether the estate of Pedro O. Fragrante is a
"person" within the meaning of the Public Service
Act.
Words and Phrases, First Series, (Vol. 6, p, 5325),
states the following doctrine in the jurisdiction of
the State of Indiana:

As the estate of the decedent is in law regarded as
a person, a forgery committed after the death of
the man whose name purports to be signed to the
instrument may be prosecuted as with the intent
to defraud the estate. Billings vs. State, 107 Ind.,
54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77.
The Supreme Court of Indiana in the decision cited
above had before it a case of forgery committed
after the death of one Morgan for the purpose of
defrauding his estate. The objection was urged
that the information did not aver that the forgery
was committed with the intent to defraud any
person. The Court, per Elliott, J., disposed of this
objection as follows:
. . . The reason advanced in support of this
proposition is that the law does not regard the
estate of a decedent as a person. This intention
(contention) cannot prevail. The estate of the
decedent is a person in legal contemplation. "The
word "person" says Mr. Abbot, "in its legal
signification, is a generic term, and includes
artificial as well as natural persons," 2 Abb. Dict.
271; Douglas vs. Pacific, etc. Co., 4 Cal. 304;
Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404.
It said in another work that 'persons are of two
kinds: natural and artificial. A natural person is a
human being. Artificial persons include (1) a
collection or succession of natural persons forming
a corporation; (2) a collection of property to which
the law attributes the capacity of having rights and
duties. The latter class of artificial persons is
recognized only to a limited extent in our law.
"Examples are the estate of a bankrupt or
deceased person." 2 Rapalje & L. Law Dict. 954.
Our own cases inferentially recognize the
correctness of the definition given by the authors
from whom we have quoted, for they declare that
it is sufficient, in pleading a claim against a
decedent's estate, to designate the defendant as
the estate of the deceased person, naming
him. Ginn vs. Collins, 43 Ind. 271. Unless we accept
this definition as correct, there would be a failure
of justice in cases where, as here, the forgery is
committed after the death of a person whose
name is forged; and this is a result to be avoided if
it can be done consistent with principle. We
perceive no difficulty in avoiding such a result; for,
to our minds, it seems reasonable that the estate
of a decedent should be regarded as an artificial
person. It is the creation of law for the purpose of
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 24
enabling a disposition of the assets to be properly
made, and, although natural persons as heirs,
devises, or creditors, have an interest in the
property, the artificial creature is a distinct legal
entity. The interest which natural persons have in
it is not complete until there has been a due
administration; and one who forges the name of
the decedent to an instrument purporting to be a
promissory note must be regarded as having
intended to defraud the estate of the decedent,
and not the natural persons having diverse
interests in it, since ha cannot be presumed to
have known who those persons were, or what was
the nature of their respective interest. The
fraudulent intent is against the artificial person,
the estate and not the natural persons who
have direct or contingent interest in it. (107 Ind.
54, 55, 6 N.E. 914-915.)
In the instant case there would also be a failure of
justice unless the estate of Pedro O. Fragrante is
considered a "person", for quashing of the
proceedings for no other reason than his death
would entail prejudicial results to his investment
amounting to P35,000.00 as found by the
commission, not counting the expenses and
disbursements which the proceeding can be
presumed to have occasioned him during his
lifetime, let alone those defrayed by the estate
thereafter. In this jurisdiction there are ample
precedents to show that the estate of a deceased
person is also considered as having legal
personality independent of their heirs. Among the
most recent cases may be mentioned that of
"Estate of Mota vs. Concepcion, 56 Phil., 712, 717,
wherein the principal plaintiff was the estate of
the deceased Lazaro Mota, and this Court gave
judgment in favor of said estate along with the
other plaintiffs in these words:
. . . the judgment appealed from must be affirmed
so far as it holds that defendants Concepcion and
Whitaker are indebted to he plaintiffs in the
amount of P245,804.69 . . . .
Under the regime of the Civil Code and before the
enactment of the Code of Civil Procedure, the heirs
of a deceased person were considered in
contemplation of law as the continuation of his
personality by virtue of the provision of article 661
of the first Code that the heirs succeed to all the
rights and obligations of the decedent by the mere

fact of his death. It was so held by this Court
in Barrios vs. Dolor, 2 Phil., 44, 46. However, after
the enactment of the Code of Civil Procedure,
article 661 of the Civil Code was abrogated, as held
in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22.
In that case, as well as in many others decided by
this Court after the innovations introduced by the
Code of Civil Procedure in the matter of estates of
deceased persons, it has been the constant
doctrine that it is the estate or the mass of
property, rights and assets left by the decedent,
instead of the heirs directly, that becomes vested
and charged with his rights and obligations which
survive after his demise.
The heirs were formerly considered as the
continuation of the decedent's personality simply
by legal fiction, for they might not have been flesh
and blood the reason was one in the nature of a
legal exigency derived from the principle that the
heirs succeeded to the rights and obligations of the
decedent. Under the present legal system, such
rights and obligations as survive after death have
to be exercised and fulfilled only by the estate of
the deceased. And if the same legal fiction were
not indulged, there would be no juridical basis for
the estate, represented by the executor or
administrator, to exercise those rights and to fulfill
those obligations of the deceased. The reason and
purpose for indulging the fiction is identical and
the same in both cases. This is why according to
the Supreme Court of Indiana in Billings vs.
State, supra, citing 2 Rapalje & L. Dictionary, 954,
among the artificial persons recognized by law
figures "a collection of property to which the law
attributes the capacity of having rights and
duties", as for instance, the estate of a bankrupt or
deceased person.
Petitioner raises the decisive question of whether
or not the estate of Pedro O. Fragrante can be
considered a "citizen of the Philippines" within the
meaning of section 16 of the Public Service Act, as
amended, particularly the proviso thereof
expressly and categorically limiting the power of
the commission to issue certificates of public
convenience or certificates of public convenience
and necessity "only to citizens of the Philippines or
of the United States or to corporations,
copartnerships, associations, or joint-stock
companies constituted and organized under the
laws of the Philippines", and the further proviso
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 25
that sixty per centum of the stock or paid-up
capital of such entities must belong entirely to
citizens of the Philippines or of the United States.
Within the Philosophy of the present legal system,
the underlying reason for the legal fiction by
which, for certain purposes, the estate of the
deceased person is considered a "person" is the
avoidance of injustice or prejudice resulting from
the impossibility of exercising such legal rights and
fulfilling such legal obligations of the decedent as
survived after his death unless the fiction is
indulged. Substantially the same reason is assigned
to support the same rule in the jurisdiction of the
State of Indiana, as announced in Billings vs.
State, supra, when the Supreme Court of said State
said:
. . . It seems reasonable that the estate of a
decedent should be regarded as an artificial
person. it is the creation of law for the purpose of
enabling a disposition of the assets to be properly
made . . . .
Within the framework and principles of the
constitution itself, to cite just one example, under
the bill of rights it seems clear that while the civil
rights guaranteed therein in the majority of cases
relate to natural persons, the term "person" used
in section 1 (1) and (2) must be deemed to include
artificial or juridical persons, for otherwise these
latter would be without the constitutional
guarantee against being deprived of property
without due process of law, or the immunity from
unreasonable searches and seizures. We take it
that it was the intendment of the framers to
include artificial or juridical, no less than natural,
persons in these constitutional immunities and in
others of similar nature. Among these artificial or
juridical persons figure estates of deceased
persons. Hence, we hold that within the
framework of the Constitution, the estate of Pedro
O. Fragrante should be considered an artificial or
juridical person for the purposes of the settlement
and distribution of his estate which, of course,
include the exercise during the judicial
administration thereof of those rights and the
fulfillment of those obligations of his which
survived after his death. One of those rights was
the one involved in his pending application before
the Public Service Commission in the instant case,
consisting in the prosecution of said application to

its final conclusion. As stated above, an injustice
would ensue from the opposite course.
How about the point of citizenship? If by legal
fiction his personality is considered extended so
that any debts or obligations left by, and surviving,
him may be paid, and any surviving rights may be
exercised for the benefit of his creditors and heirs,
respectively, we find no sound and cogent reason
for denying the application of the same fiction to
his citizenship, and for not considering it as
likewise extended for the purposes of the
aforesaid unfinished proceeding before the Public
Service Commission. The outcome of said
proceeding, if successful, would in the end inure to
the benefit of the same creditors and the heirs.
Even in that event petitioner could not allege any
prejudice in the legal sense, any more than he
could have done if Fragrante had lived longer and
obtained the desired certificate. The fiction of such
extension of his citizenship is grounded upon the
same principle, and motivated by the same reason,
as the fiction of the extension of personality. The
fiction is made necessary to avoid the injustice of
subjecting his estate, creditors and heirs, solely by
reason of his death to the loss of the investment
amounting to P35,000, which he has already made
in the ice plant, not counting the other expenses
occasioned by the instant proceeding, from the
Public Service Commission of this Court.
We can perceive no valid reason for holding that
within the intent of the constitution (Article IV), its
provisions on Philippine citizenship exclude the
legal principle of extension above adverted to. If
for reasons already stated our law indulges the
fiction of extension of personality, if for such
reasons the estate of Pedro O. Fragrante should be
considered an artificial or juridical person herein,
we can find no justification for refusing to declare
a like fiction as to the extension of his citizenship
for the purposes of this proceeding.
Pedro O. Fragrante was a Filipino citizen, and as
such, if he had lived, in view of the evidence of
record, he would have obtained from the
commission the certificate for which he was
applying. The situation has suffered but one
change, and that is, his death. His estate was that
of a Filipino citizen. And its economic ability to
appropriately and adequately operate and
maintain the service of an ice plant was the same
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 26
that it received from the decedent himself. In the
absence of a contrary showing, which does not
exist here, his heirs may be assumed to be also
Filipino citizens; and if they are not, there is the
simple expedient of revoking the certificate or
enjoining them from inheriting it.
Upon the whole, we are of the opinion that for the
purposes of the prosecution of said case No. 4572
of the Public Service Commission to its final
conclusion, both the personality and citizenship of
Pedro O. Fragrante must be deemed extended,
within the meaning and intent of the Public Service
Act, as amended, in harmony with the
constitution: it is so adjudged and decreed.
Decision affirmed, without costs. So ordered.
Moran, C.J., Pablo, Bengzon, Briones, Padilla and
Tuason, JJ., concur.
Paras, J., I hereby certify that Mr. Justice Feria
voted with the majority.
Separate Opinions
PERFECTO, J., dissenting:
Commonwealth Act No. 146 reserves to Filipino
citizens the right to obtain a certificate of public
convenience to operate an ice plant in San Juan,
Rizal. The limitation is in accordance with section 8
of Article XIV of the Constitution which provides
No franchise, certificate, or any other form of
authorization for the operation of a public utility
shall be granted except to citizens of the
Philippines or to corporations or other entities
organized under the laws of the Philippines, sixty
per centum of the capital of which is owned by
citizens of the Philippines, nor such franchise,
certificate or authorization be exclusive in
character or for a longer period than fifty years. No
franchise granted to any individual, firm or
corporation, except under the condition that it
shall be subject to amendment, alteration, or
repeal by Congress when the public interest so
requires.
The main question in this case is whether the
estate of Pedro O. Fragrante fulfills the citizenship
requirement. To our mind, the question can be

restated by asking whether the heirs of Pedro O.
Fragrante fulfill the citizenship requirement of the
law.
The estate is an abstract entity. As such, its legal
value depends on what it represents. It is a device
by which the law gives a kind of personality and
unity to undetermined tangible persons, the heirs.
They inherit and replace the deceased at the very
moment of his death. As there are procedural
requisites for their identification and
determination that need time for their
compliance, a legal fiction has been devised to
represent them. That legal fiction is the estate, a
liquid condition in process of solidification.
The estate, therefore, has only a representative
value. What the law calls estate is, a matter of fact,
intended to designate the heirs of the deceased.
The question, therefore, in this case, boils down to
the citizenship of the heirs of Fragrante.
There is nothing in the record to show conclusively
the citizenship of the heirs of Fragrante. If they are
Filipino citizens, the action taken by the Public
Service Commission should be affirmed. If they are
not, it should be reversed.
Petitioner alleges that the estate is just a front or
dummy for aliens to go around the citizenship
constitutional provision. It is alleged that Gaw Suy,
the special administrator of the estate, is an alien.
We are of the opinion that the citizenship of the
heirs of Fragrante should be determined by the
Commission upon evidence that the party should
be present. It should also determine the dummy
question raised by the petitioner.
We are of opinion and so vote that the decision of
the Public Service Commission of May 21, 1946, be
set aside and that the Commission be instructed to
receive evidence of the above factual questions
and render a new decision accordingly.
CASE NO. 6
[G.R. No. 113725. June 29, 2000]
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 27
JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF
APPEALS AND MARIA MARLENA[2] COSCOLUELLA Y
BELLEZA VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the
Court of Appeals,[3] dated December 23, 1993, in
CA-G.R. No. CV-35555, which set aside the decision
of Branch 52 of the Regional Trial Court in Bacolod
City, and ordered the defendants-
appellees (including herein petitioner), as heirs of
Dr. Jorge Rabadilla, to reconvey title over Lot No.
1392, together with its fruits and interests, to the
estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and
Testament of testatrix Aleja Belleza, Dr. Jorge
Rabadilla, predecessor-in-interest of the herein
petitioner, Johnny S. Rabadilla, was instituted as a
devisee of 511, 855 square meters of that parcel of
land surveyed as Lot No. 1392 of the Bacolod
Cadastre. The said Codicil, which was duly
probated and admitted in Special Proceedings No.
4046 before the then Court of First Instance of
Negros Occidental, contained the following
provisions:
"FIRST
I give, leave and bequeath the following property
owned by me to Dr. Jorge Rabadilla resident of 141
P. Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered
by Transfer Certificate of Title No. RT-4002
(10942), which is registered in my name according
to the records of the Register of Deeds of Negros
Occidental.
(b) That should Jorge Rabadilla die ahead of me,
the aforementioned property and the rights which
I shall set forth hereinbelow, shall be inherited and
acknowledged by the children and spouse of Jorge
Rabadilla.
xxx
FOURTH

(a)....It is also my command, in this my addition
(Codicil), that should I die and Jorge Rabadilla shall
have already received the ownership of the said
Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10942),
and also at the time that the lease of Balbinito G.
Guanzon of the said lot shall expire, Jorge
Rabadilla shall have the obligation until he dies,
every year to give to Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar
and Twenty Five (25) piculs of Domestic sugar,
until the said Maria Marlina Coscolluela y Belleza
dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he
shall give Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-4002
(10492), shall have the obligation to still give
yearly, the sugar as specified in the Fourth
paragraph of his testament, to Maria Marlina
Coscolluela y Belleza on the month of December of
each year.
SIXTH
I command, in this my addition (Codicil) that the
Lot No. 1392, in the event that the one to whom I
have left and bequeathed, and his heir shall later
sell, lease, mortgage this said Lot, the buyer,
lessee, mortgagee, shall have also the obligation to
respect and deliver yearly ONE HUNDRED (100)
piculs of sugar to Maria Marlina Coscolluela y
Belleza, on each month of December, SEVENTY
FIVE (75) piculs of Export and TWENTY FIVE (25)
piculs of Domestic, until Maria Marlina shall die,
lastly should the buyer, lessee or the mortgagee of
this lot, not have respected my command in this
my addition (Codicil), Maria Marlina Coscolluela y
Belleza, shall immediately seize this Lot No. 1392
from my heir and the latter's heirs, and shall turn it
over to my near desendants, (sic) and the latter
shall then have the obligation to give the ONE
HUNDRED (100) piculs of sugar until Maria Marlina
shall die. I further command in this my addition
(Codicil) that my heir and his heirs of this Lot No.
1392, that they will obey and follow that should
they decide to sell, lease, mortgage, they cannot
negotiate with others than my near descendants
and my sister."[4]
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 28
Pursuant to the same Codicil, Lot No. 1392 was
transferred to the deceased, Dr. Jorge Rabadilla,
and Transfer Certificate of Title No. 44498 thereto
issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived
by his wife Rufina and children Johnny (petitioner),
Aurora, Ofelia and Zenaida, all surnamed
Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y
Belleza Villacarlos brought a complaint, docketed
as Civil Case No. 5588, before Branch 52 of the
Regional Trial Court in Bacolod City, against the
above-mentioned heirs of Dr. Jorge Rabadilla, to
enforce the provisions of subject Codicil. The
Complaint alleged that the defendant-heirs
violated the conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine
National Bank and the Republic Planters Bank in
disregard of the testatrix's specific instruction to
sell, lease, or mortgage only to the near
descendants and sister of the testatrix.
2. Defendant-heirs failed to comply with their
obligation to deliver one hundred (100) piculs of
sugar (75 piculs export sugar and 25 piculs
domestic sugar) to plaintiff Maria Marlena
Coscolluela y Belleza from sugar crop years 1985
up to the filing of the complaint as mandated by
the Codicil, despite repeated demands for
compliance.
3. The banks failed to comply with the 6th
paragraph of the Codicil which provided that in
case of the sale, lease, or mortgage of the
property, the buyer, lessee, or mortgagee shall
likewise have the obligation to deliver 100 piculs
of sugar per crop year to herein private
respondent.
The plaintiff then prayed that judgment be
rendered ordering defendant-heirs to
reconvey/return-Lot No. 1392 to the surviving
heirs of the late Aleja Belleza, the cancellation of
TCT No. 44498 in the name of the deceased, Dr.
Jorge Rabadilla, and the issuance of a new
certificate of title in the names of the surviving
heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were
declared in default but on March 28, 1990 the

Order of Default was lifted, with respect to
defendant Johnny S. Rabadilla, who filed his
Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private
respondent) and a certain Alan Azurin, son-in-law
of the herein petitioner who was lessee of the
property and acting as attorney-in-fact of
defendant-heirs, arrived at an amicable settlement
and entered into a Memorandum of Agreement on
the obligation to deliver one hundred piculs of
sugar, to the following effect:
"That for crop year 1988-89, the annuity
mentioned in Entry No. 49074 of TCT No. 44489
will be delivered not later than January of 1989,
more specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or
then existing in any of our names, Mary Rose
Rabadilla y Azurin or Alan Azurin, during December
of each sugar crop year, in Azucar Sugar Central;
and, this is considered compliance of the annuity
as mentioned, and in the same manner will
compliance of the annuity be in the next
succeeding crop years.
That the annuity above stated for crop year 1985-
86, 1986-87, and 1987-88, will be complied in cash
equivalent of the number of piculs as mentioned
therein and which is as herein agreed upon, taking
into consideration the composite price of sugar
during each sugar crop year, which is in the total
amount of ONE HUNDRED FIVE THOUSAND PESOS
(P105,000.00).
That the above-mentioned amount will be paid or
delivered on a staggered cash installment, payable
on or before the end of December of every sugar
crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1990-91; and
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 29
For 1988-89, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1991-92."[5]
However, there was no compliance with the
aforesaid Memorandum of Agreement except for a
partial delivery of 50.80 piculs of sugar
corresponding to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out
with a decision, dismissing the complaint and
disposing as follows:
"WHEREFORE, in the light of the aforegoing
findings, the Court finds that the action is
prematurely filed as no cause of action against the
defendants has as yet arose in favor of plaintiff.
While there maybe the non-performance of the
command as mandated exaction from them simply
because they are the children of Jorge Rabadilla,
the title holder/owner of the lot in question, does
not warrant the filing of the present complaint.
The remedy at bar must fall. Incidentally, being in
the category as creditor of the left estate, it is
opined that plaintiff may initiate the intestate
proceedings, if only to establish the heirs of Jorge
Rabadilla and in order to give full meaning and
semblance to her claim under the Codicil.
In the light of the aforegoing findings, the
Complaint being prematurely filed is DISMISSED
without prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the
Court of Appeals reversed the decision of the trial
court; ratiocinating and ordering thus:
"Therefore, the evidence on record having
established plaintiff-appellant's right to receive
100 piculs of sugar annually out of the produce of
Lot No. 1392; defendants-appellee's obligation
under Aleja Belleza's codicil, as heirs of the modal
heir, Jorge Rabadilla, to deliver such amount of
sugar to plaintiff-appellant; defendants-appellee's
admitted non-compliance with said obligation
since 1985; and, the punitive consequences
enjoined by both the codicil and the Civil Code, of
seizure of Lot No. 1392 and its reversion to the
estate of Aleja Belleza in case of such non-
compliance, this Court deems it proper to order
the reconveyance of title over Lot No. 1392 from

the estates of Jorge Rabadilla to the estate of Aleja
Belleza. However, plaintiff-appellant must institute
separate proceedings to re-open Aleja Belleza's
estate, secure the appointment of an
administrator, and distribute Lot No. 1392 to Aleja
Belleza's legal heirs in order to enforce her right,
reserved to her by the codicil, to receive her legacy
of 100 piculs of sugar per year out of the produce
of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET
ASIDE and another one entered ordering
defendants-appellees, as heirs of Jorge Rabadilla,
to reconvey title over Lot No. 1392, together with
its fruits and interests, to the estate of Aleja
Belleza.
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the
Court of Appeals, petitioner found his way to this
Court via the present petition, contending that the
Court of Appeals erred in ordering the reversion of
Lot 1392 to the estate of the testatrix Aleja Belleza
on the basis of paragraph 6 of the Codicil, and in
ruling that the testamentary institution of Dr.
Jorge Rabadilla is a modal institution within the
purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals
erred in resolving the appeal in accordance with
Article 882 of the New Civil Code on modal
institutions and in deviating from the sole issue
raised which is the absence or prematurity of the
cause of action. Petitioner maintains that Article
882 does not find application as there was no
modal institution and the testatrix intended a
mere simple substitution - i.e. the instituted heir,
Dr. Jorge Rabadilla, was to be substituted by the
testatrix's "near descendants" should the
obligation to deliver the fruits to herein private
respondent be not complied with. And since the
testatrix died single and without issue, there can
be no valid substitution and such testamentary
provision cannot be given any effect.
The petitioner theorizes further that there can be
no valid substitution for the reason that the
substituted heirs are not definite, as the
substituted heirs are merely referred to as "near
descendants" without a definite identity or
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 30
reference as to who are the "near descendants"
and therefore, under Articles 843[8] and 845[9] of
the New Civil Code, the substitution should be
deemed as not written.
The contentions of petitioner are untenable.
Contrary to his supposition that the Court of
Appeals deviated from the issue posed before it,
which was the propriety of the dismissal of the
complaint on the ground of prematurity of cause
of action, there was no such deviation. The Court
of Appeals found that the private respondent had
a cause of action against the petitioner. The
disquisition made on modal institution was,
precisely, to stress that the private respondent had
a legally demandable right against the petitioner
pursuant to subject Codicil; on which issue the
Court of Appeals ruled in accordance with law.
It is a general rule under the law on succession
that successional rights are transmitted from the
moment of death of the decedent[10] and
compulsory heirs are called to succeed by
operation of law. The legitimate children and
descendants, in relation to their legitimate
parents, and the widow or widower, are
compulsory heirs.[11] Thus, the petitioner, his
mother and sisters, as compulsory heirs of the
instituted heir, Dr. Jorge Rabadilla, succeeded the
latter by operation of law, without need of further
proceedings, and the successional rights were
transmitted to them from the moment of death of
the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code,
inheritance includes all the property, rights and
obligations of a person, not extinguished by his
death. Conformably, whatever rights Dr. Jorge
Rabadilla had by virtue of subject Codicil were
transmitted to his forced heirs, at the time of his
death. And since obligations not extinguished by
death also form part of the estate of the decedent;
corollarily, the obligations imposed by the Codicil
on the deceased Dr. Jorge Rabadilla, were likewise
transmitted to his compulsory heirs upon his
death.
In the said Codicil, testatrix Aleja Belleza devised
Lot No. 1392 to Dr. Jorge Rabadilla, subject to the
condition that the usufruct thereof would be
delivered to the herein private respondent every
year. Upon the death of Dr. Jorge Rabadilla, his

compulsory heirs succeeded to his rights and title
over the said property, and they also assumed his
(decedent's) obligation to deliver the fruits of the
lot involved to herein private respondent. Such
obligation of the instituted heir reciprocally
corresponds to the right of private respondent
over the usufruct, the fulfillment or performance
of which is now being demanded by the latter
through the institution of the case at bar.
Therefore, private respondent has a cause of
action against petitioner and the trial court erred
in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the
New Civil Code on modal institutions is not
applicable because what the testatrix intended
was a substitution - Dr. Jorge Rabadilla was to be
substituted by the testatrix's near descendants
should there be noncompliance with the obligation
to deliver the piculs of sugar to private
respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a
person or persons to take the place of the heir or
heirs first instituted. Under substitutions in
general, the testator may either (1) provide for the
designation of another heir to whom the property
shall pass in case the original heir should die
before him/her, renounce the inheritance or be
incapacitated to inherit, as in a simple
substitution,[12] or (2) leave his/her property to one
person with the express charge that it be
transmitted subsequently to another or others, as
in a fideicommissary substitution.[13] The Codicil
sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the
inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.[14] In the
case under consideration, the provisions of subject
Codicil do not provide that should Dr. Jorge
Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants
would substitute him. What the Codicil provides is
that, should Dr. Jorge Rabadilla or his heirs not
fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned
over to the testatrix's near descendants.
Neither is there a fideicommissary substitution
here and on this point, petitioner is correct. In a
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 31
fideicommissary substitution, the first heir is
strictly mandated to preserve the property and to
transmit the same later to the second heir.[15] In
the case under consideration, the instituted heir is
in fact allowed under the Codicil to alienate the
property provided the negotiation is with the near
descendants or the sister of the testatrix. Thus, a
very important element of a fideicommissary
substitution is lacking; the obligation clearly
imposing upon the first heir the preservation of
the property and its transmission to the second
heir. "Without this obligation to preserve clearly
imposed by the testator in his will, there is no
fideicommissary substitution."[16] Also, the near
descendants' right to inherit from the testatrix is
not definite. The property will only pass to them
should Dr. Jorge Rabadilla or his heirs not fulfill the
obligation to deliver part of the usufruct to private
respondent.
Another important element of a fideicommissary
substitution is also missing here. Under Article
863, the second heir or the fideicommissary to
whom the property is transmitted must not be
beyond one degree from the first heir or the
fiduciary. A fideicommissary substitution is
therefore, void if the first heir is not related by first
degree to the second heir.[17] In the case under
scrutiny, the near descendants are not at all
related to the instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the
institution of Dr. Jorge Rabadilla under subject
Codicil is in the nature of a modal institution and
therefore, Article 882 of the New Civil Code is the
provision of law in point. Articles 882 and 883 of
the New Civil Code provide:
Art. 882. The statement of the object of the
institution or the application of the property left
by the testator, or the charge imposed on him,
shall not be considered as a condition unless it
appears that such was his intention.
That which has been left in this manner may be
claimed at once provided that the instituted heir
or his heirs give security for compliance with the
wishes of the testator and for the return of
anything he or they may receive, together with its
fruits and interests, if he or they should disregard
this obligation.

Art. 883. When without the fault of the heir, an
institution referred to in the preceding article
cannot take effect in the exact manner stated by
the testator, it shall be complied with in a manner
most analogous to and in conformity with his
wishes.
The institution of an heir in the manner prescribed
in Article 882 is what is known in the law of
succession as an institucion sub modo or a modal
institution. In a modal institution, the testator
states (1) the object of the institution, (2) the
purpose or application of the property left by the
testator, or (3) the charge imposed by the testator
upon the heir.[18] A "mode" imposes an obligation
upon the heir or legatee but it does not affect the
efficacy of his rights to the succession.[19] On the
other hand, in a conditional testamentary
disposition, the condition must happen or be
fulfilled in order for the heir to be entitled to
succeed the testator. The condition suspends but
does not obligate; and the mode obligates but
does not suspend.[20] To some extent, it is similar
to a resolutory condition.[21]
From the provisions of the Codicil litigated upon, it
can be gleaned unerringly that the testatrix
intended that subject property be inherited by Dr.
Jorge Rabadilla. It is likewise clearly worded that
the testatrix imposed an obligation on the said
instituted heir and his successors-in-interest to
deliver one hundred piculs of sugar to the herein
private respondent, Marlena Coscolluela Belleza,
during the lifetime of the latter. However, the
testatrix did not make Dr. Jorge Rabadilla's
inheritance and the effectivity of his institution as
a devisee, dependent on the performance of the
said obligation. It is clear, though, that should the
obligation be not complied with, the property shall
be turned over to the testatrix's near descendants.
The manner of institution of Dr. Jorge Rabadilla
under subject Codicil is evidently modal in nature
because it imposes a charge upon the instituted
heir without, however, affecting the efficacy of
such institution.
Then too, since testamentary dispositions are
generally acts of liberality, an obligation imposed
upon the heir should not be considered a condition
unless it clearly appears from the Will itself that
such was the intention of the testator. In case of
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 32
doubt, the institution should be considered as
modal and not conditional.[22]
Neither is there tenability in the other contention
of petitioner that the private respondent has only
a right of usufruct but not the right to seize the
property itself from the instituted heir because the
right to seize was expressly limited to violations by
the buyer, lessee or mortgagee.
In the interpretation of Wills, when an uncertainty
arises on the face of the Will, as to the application
of any of its provisions, the testator's intention is
to be ascertained from the words of the Will,
taking into consideration the circumstances under
which it was made.[23] Such construction as will
sustain and uphold the Will in all its parts must be
adopted.[24]
Subject Codicil provides that the instituted heir is
under obligation to deliver One Hundred (100)
piculs of sugar yearly to Marlena Belleza Coscuella.
Such obligation is imposed on the instituted heir,
Dr. Jorge Rabadilla, his heirs, and their buyer,
lessee, or mortgagee should they sell, lease,
mortgage or otherwise negotiate the property
involved. The Codicil further provides that in the
event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize
the property and turn it over to the testatrix's near
descendants. The non-performance of the said
obligation is thus with the sanction of seizure of
the property and reversion thereof to the
testatrix's near descendants. Since the said
obligation is clearly imposed by the testatrix, not
only on the instituted heir but also on his
successors-in-interest, the sanction imposed by the
testatrix in case of non-fulfillment of said
obligation should equally apply to the instituted
heir and his successors-in-interest.
Similarly unsustainable is petitioner's submission
that by virtue of the amicable settlement, the said
obligation imposed by the Codicil has been
assumed by the lessee, and whatever obligation
petitioner had become the obligation of the
lessee; that petitioner is deemed to have made a
substantial and constructive compliance of his
obligation through the consummated settlement
between the lessee and the private respondent,
and having consummated a settlement with the
petitioner, the recourse of the private respondent

is the fulfillment of the obligation under the
amicable settlement and not the seizure of subject
property.
Suffice it to state that a Will is a personal, solemn,
revocable and free act by which a person disposes
of his property, to take effect after his
death.[25] Since the Will expresses the manner in
which a person intends how his properties be
disposed, the wishes and desires of the testator
must be strictly followed. Thus, a Will cannot be
the subject of a compromise agreement which
would thereby defeat the very purpose of making
a Will.
WHEREFORE, the petition is hereby DISMISSED and
the decision of the Court of Appeals, dated
December 23, 1993, in CA-G.R. No. CV-35555
AFFIRMED. No pronouncement as to costs
SO ORDERED.
CASE NO. 7
G.R. No. 149351 March 17, 2004
SPEED DISTRIBUTING CORP., LITA MARCELO,
IRENEO MARCELO and PEDRO
AQUINO, petitioners,
vs.
COURT OF APPEALS and RUFINA LIM, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision1 of the
Court of Appeals in CA-G.R. No. 52214 (CV)
reversing the November 21, 1995 Order2 of the
Regional Trial Court of Quezon City, Branch 222,
dismissing the complaint in Civil Case No. Q-95-
24588, and its August 8, 2001 Resolution denying
the Motion for Reconsideration of the aforesaid
decision.
The Antecedents
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 33
On September 20, 1953, Pastor Y. Lim married
private respondent Rufina Luy Lim.3 During the
early part of their marriage, Pastor organized some
family corporations using their conjugal funds.
Among these corporations was Skyline
International Corporation (Skyline, for brevity)
which was engaged in the importation and sale of
Hankook Brand Korean Tires and the acquisition of
real estate. The couple were incorporators and
major stockholders of the corporation and were
also employed therein.
Pastor and the private respondent did not have a
child. They decided to "adopt" Leonard Lim and
petitioner Lita Lim Marcelo, who were children of
their distant poor relatives in Zamboanga City.
There was, however, no formal court adoption.
Sometime thereafter, marital problems arose, as a
result of which the private respondent stopped
working at Skyline. As the domestic problems
remained unresolved, Pastor and the private
respondent jointly filed on August 13, 1968 a
Petition before the Juvenile and Domestic
Relations Court of Quezon City, for voluntary
dissolution of conjugal properties. As their
differences worsened, the private respondent filed
on January 27, 1971 a petition for legal separation
against Pastor on the ground of infidelity before
the then Juvenile and Domestic Relations Court of
Quezon City. The petition was amended into one
for Support with Alimony and the case was
docketed as Civil Case No. QE-0030.
On February 17, 1972, the court rendered a
decision, awarding P3,000 monthly support to the
private respondent and the children, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered:
1. Ordering defendant to pay plaintiff monthly
support of P3,000.00 effective as of February,
1971;
2. Ordering defendant to pay plaintiff attorneys
fees in the sum of P2,000.00, plus the cost of this
suit. 4
On June 24, 1975, the private respondent filed a
motion for execution. The court issued an order
granting the motion and the sheriff levied on the
properties of Skyline. The latter filed, on December
19, 1975, a third-party claim, alleging that the
 SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 34

properties levied were its personal properties and

not those of Pastor, who was only one of its Shares Subscribed Paid
stockholders. The private respondent filed a
motion to quash Skylines claim, which the court Lita T. Lim 11,200 P 1,120,000.00 P 280,000.00
granted.
Leonard L. Lim 1,000 100,000.00 25,000.00
Skyline filed a petition for certiorari with prayer
for temporary restraining order before the Court Lina S. Lim 150 15,000.00 3,750.00
of Appeals for the nullification of the order of the
Larry S. Lim 140 14,000.00 3,500.00
trial court quashing the third-party claim. The case
was docketed as CA-G.R. No. 05312 (SP). The
Pastor Y. Lim 10 1,000.00 250.00
appellate court issued a temporary restraining
order on April 27, 1976. On June 23, 1976, the 12,500 P1,250,000.00 P 312,500.008
Court of Appeals rendered a decision dismissing
the petition, thus, lifting the restraining Skyline, then, filed a petition for review before this
order.5 The appellate court ruled as follows: Court, but the petition was dismissed in a
Resolution dated August 6, 1976.7
While it is recognized as "lawful to obtain a
corporation charter, even with a single substantial On August 21, 1987, the Speed Distributing
stockholder, to engage in a specific activity, and Corporation (Speed, for brevity), was registered
such activity may co-exist with other private with the Securities and Exchange Commission,
activities of the stockholder" (Liddel & Co., Inc. vs. with Pastor Lim as one of the incorporators. He
Collector of Internal Revenue, L-9687, June 30, owned ten shares, valued at P100.00 per share.
1961, 2 SCRA 632), the corporations distinct The following were the names of the
personality will be disregarded when it is so incorporators, the number of shares respectively
"controlled and its affairs so conducted as to make subscribed to by them and the amount paid up:
it merely an instrumentality, agency or conduit of
another" (NAMARCO vs. Associated Finance Petitioner Lita Lim-Marcelo was elected treasurer
Company, supra). of the corporation.

It is not disputed that petitioner Skyline On June 21, 1991, the Leslim Corporation (Leslim,
International, Inc. was a conjugal enterprise (p. 2, for brevity), was registered with the Securities and
Decision) before its incorporation in December Exchange Commission with a capital stock of
1970 (p. 10, id.), when it was still a proprietorship. P12,000,000.00, divided into 120,000 shares at par
Petitioner Skyline International, Inc. is still value of P100.00 per share. Pastor Lim subscribed
engaged in the sale of automotive parts and to 95,700 shares valued at P9,570,000.00. The
dealership of Firestone Rubber and Tires which incorporators, the number of shares they
business it was already doing when it was still a subscribed to and the amounts paid for were
proprietorship. Respondent Court found that the indicated in the articles of incorporation as
only assets of petitioner corporation are the follows:
conjugal properties. Thus, respondent Court
Name No. of Share Amount Subscribed
concludes that "it is safe to assume that Skyline
International Corporation is another name for Mr. Teresa T. Lim 24,000 P2,400,000.00
and Mrs. Pastor Y. Lim in person." In fact, Pastor Y.
Lim admitted that the other incorporators are Leonard L. Lim 100 10,000.00
their former employees and their respective shares
Larry S. Lim 100 10,000.00
are nominal (Decision, pp. 14-15).

The above facts are more than enough justification Lina L. Lim 100 10,000.00
for respondent Court to pierce the veil of
Pastor Y. Lim 95,700 9,570,000.00
corporate fiction. Consequently, we find the
questioned orders to be in order.6

120,000 P12,000,000.00
The following persons have paid on the shares of
the capital stock for which they have subscribed
the amount set after their names respectively:
Name Amount Paid
Teresa T. Lim P600,000.00
Leonard L. Lim 2,500.00
Larry S. Lim 2,500.00
Lina L. Lim 2,500.00
Pastor Y. Lim P2,392,500.00
P3,000,000.009
Under the articles of incorporation, Pastor Lim was
the treasurer-in-trust of the corporation.10 The
Vice-President and Treasurer of the corporation
was petitioner Lita Lim-Marcelo, now married to
petitioner Ireneo Marcelo.
On August 26, 1994, Leslim Corporation executed a
deed of absolute sale in favor of the Speed,
represented by its Vice-President, petitioner
Ireneo Marcelo, over the parcel of lot located at
Diliman Quezon City, covered by TCT No. 36617 for
the price of P3,900,000.00.11 Petitioner Lita Lim-
Marcelo, the Vice-President of Leslim12 signed in
the deed for and in behalf of the corporation. She
was authorized by the Board of Directors in a
Resolution August 19, 1994 to sign the said deed
and to receive the purchase price for and in behalf
of Leslim. The said Resolution was certified by
corporate secretary Pedro Aquino on August 22,
1994.13 Consequently, TCT No. 36617 which was in
the name of Leslim, was cancelled and a new one,
TCT No. T-116716, was issued to and in the name
of Speed.14
On June 11, 1994, Pastor Lim died intestate and
was survived by his wife, the private respondent.
On March 17, 1995, the private respondent,
through her nephew and attorney-in-fact George
Luy, filed a petition for the administration of the
estate of her deceased husband before the
Regional Trial Court of Quezon City, docketed as
Special Proceedings No. Q-95-23334.15 The case
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 35
was raffled to Branch 93. The private respondent
filed a motion praying for the annotation of a
notice of lis pendens at the dorsal portion of all
titles over the properties in the name of Pastor.
Included in the said properties were those
registered in the name of other corporations of
which Pastor was a stockholder, including that
parcel of land covered by TCT No. T-116717
registered under the name of Speed. The court
granted the motion. The affected corporations,
including Speed, filed motions to cancel the
notices of lis pendens and motions for exclusion of
certain properties from Pastors estate. On June 8,
1995, the Court granted the motions and ordered
the exclusion of certain properties from the estate
of Pastor and the cancellation of the notices of lis
pendens on properties registered in the name of
the said corporations, including that covered by
TCT No. T-116716 under the name of Speed.
On June 27, 1995, the private respondent filed a
verified amended petition in SP No. Q-95-23334
alleging, among others, that during his lifetime,
Pastor substantially owned the following business
entities: Skyline Sales Corporation, Speed
Distributing, Inc., and Leslim Corporation:
5. That the following real properties, although
registered in the name of the above entities, were
actually acquired by Pastor Y. Lim during his
CORPORATION TITLE LOCATION
b. Leslim Corp. TCT No. 36617 Quezon City
marriage with petitioner, to wit:
but now illegally transferred to and registered in
the name of Speed Distributing, Inc. under TCT No.
116716.16
On July 4, 1995, the probate court issued an Order
setting aside its June 8, 1995 Order and directed
the Register of Deeds to reinstate the notice of lis
pendens on TCT No. T-116716. The court denied
the motion for the reconsideration of the said
order.
Speed filed a petition for certiorari with the Court
of Appeals for the nullification of the July 4, 1995
and September 12, 1995 Orders of the trial court,
docketed as CA-G.R. No. 38617 (SP).

Meanwhile, on August 1, 1995, the private
respondent filed a complaint against Speed, and
the petitioners with the RTC of Quezon City, for
the nullification of the Deed of Absolute Sale
executed by Leslim in favor of Speed over the
property covered by TCT No. T-36617, and the
cancellation of TCT No. T-11676, with damages
before the RTC of Quezon City. The case was
raffled to Branch 222, and was docketed as Q-95-
24588. The private respondent alleged, inter alia,
that:
...
6. Plaintiff is the surviving spouse of the late Pastor
Y. Lim who died intestate on June 11, 1994, but
leaving several properties, real and personal,
situated in Quezon City, Makati City, Rizal
Province, Las Pias, Valenzuela, Manila, Cavite,
Masbate and other parts of the country.
7. During the existence of the marriage of plaintiff
and Pastor Y. Lim, the latter formed, among
others, Leslim Corporation, and he actually owned
the same as in fact he had in his name 95,700 out
of the 120,000 shares of the authorized capital
stock. The remaining shares of stocks were listed
in the name of some persons who were actually
his dummies, and were made to appear as
stockholders of Leslim Corporation only for
purposes of registration with the Securities and
Exchange Commission.
8. Leslim Corporation, in turn, is a registered
owner of a certain parcel of land located in
Diliman, Quezon City, as evidenced by TCT No.
36617, issued by defendant Register of Deeds,
copy of which is hereto attached as Annex "C."
9. Plaintiff initiated an intestate proceedings on
the estate of her deceased husband in order to lay
claim on her conjugal share thereon. She then
started to verify the various TCTs of the real
property in the name of her deceased husband,
including those in the name of Leslim Corporation,
and she discovered that TCT No. 36617 had already
been canceled and in lieu thereof, TCT No. 116716
was issued by defendant Register of Deeds in the
name of defendant Corporation
10. Upon further verification, plaintiff discovered
that the basis of the cancellation of TCT No. 36617
in favor of TCT No. 116716 is a Deed of Sale signed
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 36
and executed by defendant Lita Marcelo who
misrepresented herself as Vice President of Leslim
Corporation and as such she was purportedly
authorized to dispose of the property in question
in favor of defendant corporation, which latter
corporation was allegedly represented in the
transaction by her husband, herein defendant
Ireneo Marcelo who claimed himself as the Vice
President of defendant corporation.
11. To give a semblance of legality to the feigned
transaction of sale, defendant Pedro Aquino,
misrepresenting himself as the corporate secretary
of Leslim Corporation, executed a
simulated/falsified secretarys certificate, wherein
he stated that in an alleged special meeting of the
Board of Directors of Leslim Corporation held on
August 19, 1994 in its office at 1006 Quezon
Avenue, Quezon City, defendant Lita Marcelo was
allegedly authorized by the Board to enter into the
transaction in question.
12. The transfer of the property from Leslim to
defendant corporation is imaginary, the deed of
sale and the secretarys certificate are simulated,
hence, null and void, as shown below:
13. First of all, there was no such special meeting
of the board of directors of Leslim Corporation on
August 19, 1994, contrary to the allegation in the
secretarys certificate. No notices to that effect
were ever sent to Pastor Lim, a director and owner
of 79.75 per cent of the capital stock of Leslim
Corporation. Secondly, there was never a meeting
of the stockholders wherein more than two-thirds
of the stocks were present in order to approve the
sale of all or substantially all of the assets
consisting of real properties of Leslim Corporation.
Indeed, no such meeting could have been held
because Pastor Lim, who owned practically two-
thirds of the total capital stock, had already died
on June 11, 1994. The last meeting of stockholders
of Leslim Corporation was held in January, 1994.
Since then up to the present, no other
stockholders meeting, special or otherwise, was
ever held by Leslim Corporation.
14. Thirdly, the place of the alleged special
stockholders meeting could not have occurred in
the place where it was purportedly held, namely,
1006 Quezon Avenue, Quezon City. This place is
the address of Accurate Distributing, Inc., which

had been under the control of the group of
Estrelita Cabarles since August 1994 up to the
present. On the other hand, defendants Lita
Marcelo, Ireneo Marcelo, and Pedro Aquino and
their cohorts are the adversaries of Estrelita
Cabarles in several cases, civil and criminal,
pending before various courts in Metro Manila and
suburbs. The control and possession by the group
of Cabarles of the premises ineluctably shows that
no meeting was ever held thereon by their
adversaries. Fourthly, there was never any
payment made to Leslim Corporation respecting
the alleged purchase price.
15. As a consequence of the above, defendant Lita
Marcelo could not have been the Vice President of
Leslim Corporation at the time the simulated deed
of sale in question was executed, contrary to her
claim thereon. Besides, defendant Lita Marcelo has
never been a stockholder, much less a director of
Leslim Corporation. Hence, it follows that the
subject deed of absolute sale and the secretarys
certificate are both simulated, and TCT No. 116716
of no force and effect, necessitating as it does its
cancellation. The imaginary transaction of sale was
clearly resorted to by defendants after the August
19, 1994 special stockholders meeting of Accurate
Distributing Inc., where in the ground of Estrelita
Cabarles were elected as Board of Directors and
corporate officers and in order to deprive plaintiff
of her conjugal share and the other heirs of Pastor
Y. Lim of their shares in his estate. In fact, all the
real property registered in the name of Leslim
Corporation and in Nellmart Corporation wherein
Pastor Lim is also the majority stockholder had
been transferred by defendants and their cohorts
to themselves or to entities controlled by them, all
at practically the same time. Thus:
a. TCT No. 36617 Deed of Sale dated August 22,
1994 from Leslim to defendant Corporation.
Amount P3,400,000.00.
b. TCT No. 66001 Deed of Sale dated August 26,
1994 from Leslim to Auto Truck TBA. Amount
P10,500,000.00.
c. TCT No. 101730 Deed of Sale dated August 26,
1994 from Leslim to Skyline Sales Corporation.
Amount P15,500,00.00.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 37
d. TCT No. T-48028 in the name of Nellmart but
illegally transferred to defendant corporation
under TCT No. 116718.
e. TCT No. 236236 in the name of Nellmart but
illegally transferred to Alliance Marketing, Inc.,
under TCT No. 285400.
f. TCT No. 236237 in the name of Nellmart but
illegally transferred to Alliance Marketing, Inc.
under TCT No. 285399.
16. The same scheme was resorted to by
defendants and their cohorts in divesting other
corporations of all real property, where Pastor Lim
is the stockholder. Thus, the motives of defendants
in conspiracy with each other and with several
other persons and entities are one and the same,
namely: to monopolize the control, possession,
enjoyment and ownership of all the estate of
Pastor Lim, thereby depriving plaintiff of her
conjugal share as well as her own share in her
husbands own estate.
17. By reason of these acts of defendants, plaintiff
was constrained to hire the services of counsel for
a fee of P50,000.00 and appearance fee of
P1,500.00 per hearing. She likewise suffered
sleepless nights and wounded feelings, which if
converted into its monetary equivalent would be
P100,000.00, more or less.
18. In order to prevent defendants from repeating
the unlawful acts, they should be condemned by
pay exemplary damages in the amount of
P100,000.00.17
The private respondent prayed that, after due
proceedings, judgment be rendered in her favor,
thus :
WHEREFORE, premises considered, it is
respectfully prayed of this Honorable Court that
after notice and hearing, judgment be rendered:
a. declaring the secretarys certificate and the
deed of sale under question null and void;
b. cancelling TCT No. 116716 issued in the name of
defendant Speed Distributing Corporation for
being without basis in fact and in law;
c. ordering defendants to pay jointly and severally
the amount of P100,000.00 exemplary damages;

d. ordering defendants to play (sic) plaintiff jointly
and severally the amount of P50,000.00 attorneys
fees and P1,000.00 appearance fee per hearing.
e. Ordering defendants to pay the cost of suit.18
In their answer with compulsory counterclaim, the
petitioners specifically denied the material
allegations of the complaint, and by way of special
and affirmative defenses, alleged that the private
respondent (the plaintiff therein), was not privy to
the deed of sale executed by Leslim and Speed. As
such, she was not the real party-in-interest and
had no cause of action against the defendants.
Pursuant to Presidential Decree No. 902-A, the
SEC, not the RTC, had jurisdiction over the
complaint, as it was evident that the complaint
involved an intra-corporate controversy.19
In her reply, the private respondent alleged that
even if she was not privy to the deed of sale over
the subject property, she was entitled to its
income, and her right accrued at the time of
Pastors death on June 11, 1994.
On September 4, 1995, the RTC issued an Order in
Special Proceedings No. 95-2334 granting the
petition and appointed the private respondent as
the co-administrator of Miguel Lim, with Atty.
Donald Lee as special administrator.20
The court held a hearing on the special and
affirmative defenses of the defendants (the
petitioners herein) in Civil Case No. 95-24588. On
November 25, 1995, the RTC issued an order
dismissing the complaint, real party-in-interest.
According to the court, she had no cause of action
against the petitioners as she was not privy to the
contract of sale between Leslim and Speed.
Neither was she a stockholder of the defendant
corporation; as such, she could not sue for the
corporation. According to the court, the private
respondent could not file the complaint in behalf
of her deceased husband Pastor as she was unable
to show that she was the authorized
representative of his estate; even if she was so
authorized, her claim was limited to the shares
owned by Pastor, which could not extend to the
properties of Leslim. The court also ruled that the
action involved intra-corporate controversies over
which the SEC had original and exclusive
jurisdiction.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 38
Aggrieved, the private respondent filed a motion
for reconsideration of the order which was denied
on February 9, 1996.21 Dissatisfied, she appealed
the order to the Court of Appeals,22 docketed as
CA-G.R. CV No. 52214. She ascribed the following
errors to the court a quo:
I
THE LOWER COURT ERRED IN RULING THAT THE
PLAINTIFF-APPELLANT IS NOT A REAL PARTY-IN-
INTEREST TO FILE THE "COMPLAINT" BEFORE THE
COURT A QUO.
II
THE LOWER COURT ERRED IN RULING THAT IT HAD
NO JURISDICTION OVER THE "COMPLAINT" IN
CIVIL CASE NO. Q-95-24588.
III.
THE LOWER COURT ERRED IN DISMISSING THE
PLAINTIFF-APPELLANTS "COMPLAINANT" IN CIVIL
CASE NO. Q-95-24588.23
On April 18, 1996, the Court of Appeals rendered
judgment in CA-G.R. SP No. 38617 nullifying the
assailed orders. The CA ruled that the private
respondent failed to prove that Pastor Lim, not
Speed, owned the property. It also ruled that the
finding of the probate court that the property
belonged to Pastor Lim was only provisional in
nature. The private respondent then filed a
petition for review on certiorari with this Court,
docketed as G.R. No. 124715. On January 24, 2000,
this Court rendered a Decision dismissing the
petition.
On September 15, 2000, the CA rendered a
decision in CA-G.R. CV No. 52214 setting aside the
assailed orders and ordering the RTC to hear Civil
Case No. Q-95-24588, thus:
WHEREFORE, premises considered, the Regional
Trial Court, National Capital Judicial Region,
Quezon City, Branch 222 is hereby ORDERED to try
Civil Case No. Q-95-24588 without costs to
plaintiff-appellant.24
The CA ruled that, as gleaned from the pleadings
of the parties, the action involved intra-corporate
controversies as defined in Section 5 of
Presidential Decree (PD) No. 902-A; as such, the

RTC had no jurisdiction over the action. However,
in light of Rep. Act No. 8799 which transferred to
courts of general jurisdiction or the appropriate
RTC cases over which the SEC had jurisdiction, the
CA ordered the remand of the case to the RTC, for
the determination, among others, of the
resolution of the issue of whether or not the
private respondent was the real party-in-interest.
The Court of Appeals stated, thus:
However, viewed in the light of Republic Act No.
8799, otherwise known as the Securities
Regulation Code, approved on July 19, 2000 which
has effectively divested the Securities and
Exchange Commission of its quasi-judicial
functions and transferred them to the Regional
Trial Court, We rule that the latter may take
cognizance of the instant case so as not to
roundabout the judicial process, without
prejudiced (sic) to its being ventilated as to
whether or not appellant The private respondent
Lim is a real party in interest to be determined
during the trial on the merits before the
appropriate court who has now the jurisdiction
over the case at bar.25
The motion for reconsideration of the petitioners
was denied by the CA, per its Resolution dated
August 8, 2001.
In their petition at bar, the petitioners argue that
THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE TRIAL COURT HAS
JURISDICTION OVER THE SUBJECT CASE BY VIRTUE
OF THE EFFECTIVITY OF RA 8799 KNOWN AS
SECURITIES REGULATION CODE.26
The petitioners contend that the RTC had no
jurisdiction over the private respondents
complaint because the case involved intra-
corporate controversies. Since Rep. Act No. 8799
took effect only on August 8, 2000, while the
private respondents appeal in the CA was
pending, it should not be given retroactive effect.
Furthermore, Section 5.2 of RA 8799 proscribes the
transfer of cases to the RTC; as such, the CA should
have dismissed the private respondents appeal
without prejudice to her right to refile her
complaint in the RTC. The petitioners argue that
the CA cannot order the case remanded to the RTC
for the sake of convenience.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 39
For her part, the private respondent asserts that
the complaint does not involve intra-corporate
controversies and the RTC had jurisdiction over the
action and the issues raised by the parties in their
pleadings. The private respondent, likewise,
opines that there is nothing wrong with the CAs
ruling directing the RTC to hear the case to avoid
any consequent delay.
The sole issue in this case is whether or not the CA
erred in remanding the case to the RTC and
directing it to decide and hear the complaint on its
merits, in view of Rep. Act No. 8799 which took
effect on August 8, 2000, during the pendency of
the case before it, effectively transferring
jurisdiction over cases involving intra-corporate
controversies from the SEC to the RTC.
The Private Respondents Action in the RTC Does
Not Involve an Intra- Corporate Dispute.
Jurisdiction over the subject matter is conferred by
law.27 The nature of an action, as well as which
court or body has jurisdiction over it, is
determined based on the allegations contained in
the complaint of the plaintiff, irrespective of
whether or not plaintiff is entitled to recover upon
all or some of the claims asserted therein.28 It
cannot depend on the defenses set forth in the
answer, in a motion to dismiss, or in a motion for
reconsideration by the defendant.29
Section 5 of P.D. No. 902-A provides that the SEC
shall have original and exclusive jurisdiction over
complaints, to hear and decide cases involving the
following:
(a) Devices or schemes employed by or any acts of
the board of directors, business associates, its
officers or partners, amounting to fraud and
misrepresentation which may be detrimental to
the interest of the public and/or stockholders,
partners, members of associations registered with
the Commission;
(b) Controversies arising out of intra-corporate or
partnership relations, between and among
stockholders, members, or associates; between
any or all of them and the corporation, partnership
or association and the State insofar as it concerns
their individual franchise or right as such entity;

(c) Controversies in the election or appointment of
directors, trustees, officers or managers of such
corporations, partnership or associations;
(d) Petitioners of corporations, partnerships or
associations to be declared in the state of
suspension of payment in cases where the
corporation, partnership or association possesses
sufficient property to cover all its debts but
foresees the impossibility of meeting them when
they fall due or in cases where the corporation,
partnership or assciation has no sufficient assets to
cover its liabilities but is under the management of
a rehabilitation receiver or management
committee created pursuant to this Decree.30
However, Section 5.231 of Rep. Act No. 8799,
transferred the erstwhile exclusive and original
jurisdiction of the SEC over actions involving intra-
corporate controversies to the courts of general
jurisdiction, or the appropriate RTC. All intra-
corporate cases pending in the SEC were to be
transferred to the appropriate RTC. Congress
thereby recognized the expertise and competence
of the RTC to take cognizance of and resolve cases
involving intra-corporate controversies. In
compliance with the law, the Court issued, on
November 21, 2000 a Resolution designating
certain branches of the RTC in the National Capital
Region to try and decide cases enumerated in
Section 5 of P.D. No. 902-A. For Quezon City cases,
the Court designated Branches 46 and 93 of the
RTC. Branch 222 of the Quezon City RTC, which
dismissed the complaint of the private respondent,
was not so designated by the Court. On March 13,
2001, the Court approved the Interim Rules of
Procedure for Intra-Corporate Controversies,
which took effect on April 1, 2001.
To determine whether a case involves an intra-
corporate controversy, and is to be heard and
decided by the Branches of the RTC specifically
designated by the Court to try and decide such
cases, two elements must concur: (a) the status or
relationship of the parties; and (2) the nature of
the question that is the subject of their
controversy.32
The first element requires that the controversy
must arise out of intra-corporate or partnership
relations between any or all of the parties and the
corporation, partnership or association of which
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 40
they are stockholders, members or associates;
between any or all of them and the corporation,
partnership or association of which they are
stockholders, members or associates, respectively;
and between such corporation, partnership or
association and the State insofar as it concerns
their individual franchises. The second element
requires that the dispute among the parties be
intrinsically connected with the regulation of the
corporation.33 If the nature of the controversy
involves matters that are purely civil in character,
necessarily, the case does not involve an intra-
corporate controversy. The determination of
whether a contract is simulated or not is an issue
that could be resolved by applying pertinent
provisions of the Civil Code.34
In the present recourse, it is clear that the private
respondents complaint in the RTC is not an intra-
corporate case. For one thing, the private
respondent has never been a stockholder of
Leslim, or of Speed for that matter. The complaint
is one for the nullification of the deed of absolute
sale executed by Leslim in favor of Speed over the
property covered by TCT No. T-36617 in the name
of Leslim, the cancellation of TCT No. T-116716 in
the name of Speed, as well as the Secretarys
Certificate dated August 22, 1994. The private
respondent alleged that since her deceased
husband, Pastor Lim, acquired the property during
their marriage, the said property is conjugal in
nature, although registered under the name of
Leslim under TCT No. T-36617. She asserted that
the petitioners connived to deprive the estate of
Pastor Lim and his heirs of their possession and
ownership over the said property using a falsified
Secretarys Certificate stating that the Board of
Directors of Leslim had a meeting on August 19,
1995, when, in fact, no such meeting was held.
Petitioner Lita Lim was never a stockholder of
Leslim or a member of its Board of Directors; her
husband, petitioner Ireneo Marcelo was the Vice-
President of Speed; and, petitioner Pedro Aquino
was Leslims corporate secretary. The private
respondent further averred that the amount of
P3,900,000.00, the purchase price of the property
under the deed of absolute sale, was not paid to
Leslim, and that petitioners Spouses Marcelo and
petitioner Pedro Aquino contrived the said deed to
consummate their devious scheme and chicanery.

The private respondent concluded that the Deed of
Absolute Sale was simulated; hence, null and void.
We are convinced that on the basis of the material
allegations of the complaint, the court a quo had
jurisdiction over the case.
The Private Respondent is a Real Party-in-Interest
as Plaintiff.
Rule 3, Section 2 of the Rules of Court, as
amended, provides as follows:
SEC. 2. Parties in interest. A real party in interest
is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to
the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be
prosecuted or defended in the name of the real
party in interest.
The private respondent filed the complaint as one
of the heirs of Pastor Lim, who died intestate on
June 11, 1994. She was, in fact, the surviving
spouse of the deceased, a compulsory heir by
operation of law. The general rule under the law
on succession is that successional rights are
transmitted from the moment of death of the
decedent and compulsory heirs are called upon to
succeed by operation of law to the inheritance
without the need of further proceedings. Under
Article 776 of the New Civil Code, inheritance
includes all the properties, rights and obligations
of a party, not extinguished by his
death.35 Although the private respondent was
appointed by the probate court as a special
administratrix of the estate of Pastor Lim, she had
the right, apart from her being a special
administratrix, to file the complaint against the
petitioners for the nullification of the deed of
absolute sale, and TCT Nos. T-36617 and T-116716.
Indeed, in Emnace vs. Court of Appeals, et al.,36 we
held that:
On the third issue, petitioner asserts that the
surviving spouse of Vicente Tabanao has no legal
capacity to sue since she was never appointed as
administratrix or executrix of his estate.
Petitioners objection in this regard is misplaced.
The surviving spouse does not need to be
appointed as executrix or administratrix of the
estate before she can file the action. She and her
children are complainants in their own right as
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 41
successors of Vicente Tabanao. From the very
moment of Vicente Tabanaos death, his rights
insofar as the partnership was concerned were
transmitted to his heirs, for rights to the
succession are transmitted from the moment of
death of the decedent.
Whatever claims and rights Vicente Tabanao had
against the partnership and petitioner were
transmitted to respondents by operation of law,
more particularly by succession, which is a mode
of acquisition by virtue of which the property,
rights and obligations to the extent of the value of
the inheritance of a person are transmitted.
Moreover, respondents became owners of their
respective hereditary shares from the moment
Vicente Tabanao died.
A prior settlement of the estate, or even the
appointment of Salvacion Tabanao as executrix or
administratrix, is not necessary for any of the heirs
to acquire legal capacity to sue. As successors who
stepped into the shoes of their decedent upon his
death, they can commence any action originally
pertaining to the decedent. From the moment of
his death, his rights as a partner and to demand
fulfillment of petitioners obligations as outlined in
their dissolution agreement were transmitted to
respondents. They, therefore, had the capacity to
sue and seek the courts intervention to compel
petitioner to fulfill his obligations.37
All the Compulsory Heirs of the Decedent and
Leslim Corporation are Indispensable Parties.
In her complaint, the private respondent sought
the nullification of the Deed of Absolute Sale
executed by Leslim Corporation in favor of Speed,
as well as TCT No. T-36617 under its name. Thus,
Leslim Corporation is an indispensable party, and
should be impleaded as a party-defendant
conformably to Section 7, Rule 3 of the Rules of
Court, as amended.
SEC. 7. Compulsory joinder of indispensable
parties. Parties in interest without whom no
final determination can be had of an action shall
be joined either as plaintiffs or defendants.
As Leslim Corporation was a party to the deed, its
interests in the subject of the action and the
outcome thereof is such that the trial court could
not proceed without its presence. All actuations of

the trial court subsequent to the filing of the
complaint are null and void, not only as to Leslim
Corporation, but also as to the present
parties.38 All the compulsory heirs of the deceased
must also be impleaded as plaintiffs, being
indispensable parties.39 Thus, the private
respondent needs to amend her complaint in the
court a quo to include all indispensable parties;
otherwise, her claim would be dismissed.
IN LIGHT OF ALL THE FOREGOING, the petition is
DISMISSED. The records are remanded to the
Regional Trial Court of Quezon City, Branch 222,
for further proceedings on the merits of the case.
SO ORDERED.
CASE NO. 8
G.R. Nos. L-36811, 36827, 36840,
36872 March 31, 1934
ANTONIO MA. BARRETTO Y ROCHA, ET
AL., plaintiffs-appellees,
vs.
AUGUSTO H. TUASON Y DE LA PAZ, ET
AL., defendants-appellants;
BENITO LEGARDA Y ROCES, administrator of the
estate of the deceased Benito Legarda y de la Paz,
ET AL.,
ESTANISLAOA ARENAS, ET AL., and ANA BARCINAS
TORRES, (alias ANA BARCINAS PEREZ) ET
AL.,intervenors-appellants;
ERIBERTO TUASON, ET AL., intervenors-appellees.
Araneta, De Joya, Zaragoza and Araneta and Jose
Yulo for defendants-appellants.
Eusebio Orense and Nicolas Belmonte for
intervenors- appellants Legarda de la Paz et al.
Feria and La O for intervenors-appellees Arenas et
al.
J.A. Wolfson for intervenors-appellants Barcinas
Torres et al.
Antonio Sanz and Courtney Whitney for plaintiffs-
appellees.
Duran, Lim and Tuason for intervenors-appellees
G. Maga et al.
No appearance for the other intervenors-appellees.
IMPERIAL, J.:
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 42
For the third time, there is presented for our
consideration the mayorazgo founded by the
deceased Don Antonio Tuason. The first occasion
was when both plaintiffs and defendants appealed
from a decision of the Court of First Instance of
Manila, dismissing the complaint and the
counterclaim filed, without costs. The appeals thus
interposed were docketed under No. 23923, and
the decision promulgated on March 23, 1926, is
published in full in volume 50 Philippine Reports,
page 888 et seq. the second occasion was when
some of the defendants instituted
a certiorariproceeding against the Court of First
Instance of Manila, some of the plaintiffs, and
other intervenors, because of the appointment, at
the latter's instance, of the Bank of the Philippine
Islands as receiver of all the properties constituting
the mayorazgo. Said proceeding was docketed
under No. 32423, and the decision promulgated on
February 7, 1930, is published in full in volume 54
Philippine Reports, page 408 et seq.1 And the third
is brought about by four appeals taken by the
defendants and some intervenors from certain
portions of the decision and order rendered by the
court during the new trial held pursuant to our
resolution of which we shall hereafter have
occasion to speak.
The four appeals now before us were docketed
separately, but for a better understanding of the
questions which we propose to resolve, we have
thought it convenient to render a single decision
wherein each appeal will be discussed individually.
PRELIMINARY CONSIDERATIONS
Before entering upon a consideration of the
appeals, it is convenient to set out some
fundamental facts which have been submitted,
discussed, and resolved in the decision rendered in
the original and principal case, and which are of
the utmost importance to bear in mind in resolving
the questions raised anew in the appeals. These
facts are:
The mayorazgo was founded by Don Antonio
Tuason on February 25, 1794.
On June 4 of the same year the founder died in the
City of Manila.
The mayorazgo was approved by Royal Cedula of
August 20, 1795.

On October 11, 1820, the Statute of Civil
Disentailments was promulgated in Spain, was
extended to the Philippine Islands, and took effect
therein on March 1, 1864, by virtue of a Royal
Decree of October 31, 1863.
The properties of the mayorazgo consist of
the Haciendas de Santa Mesa y Diliman, Hacienda
de Mariquina, and two urban properties situated
on Rosario Street, Manila. By agreement of the
parties, the assessed value of the said properties
is:
Haciendas de Santa Mesa y
P3,550,646.00
Diliman
Hacienda de Mariquina 1,507,140.00
Properties on Rosario Street 542,382.00
Total . . . . . . . . . . . . . . . . . . 5,600,168.00
After the promulgation of the decision in the
principal case, the defendants filed a motion of
reconsideration and various persons filed motions
of intervention asking at the same time that they
be admitted as intervenors for the purpose of
participating in one-fifth of the properties. The
resolution published in volume 50 Philippine
Reports, page 959 et seq., was adopted, wherein
(page 963) the following fundamental conclusions,
established in the decision, were reiterated:
Resolving, therefore, said motion for
reconsideration, we reiterate the following
conclusions, declaring finally:
(1) That the first-born possessor of
this mayorazgo was a mere usufructuary of the
entailed properties.
(2) That this mayorazgo was a fideicomiso.
(3) That the charge to distribute the fifth of the
revenues from said properties was a family trust.
(4) That article 4 of the Disentailing Law of October
11, 1820 is applicable to the present case.
(5) That the fifth of the properties into which, by
virtue of said law, the fifth of the revenue was
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 43
converted on March 1, 1864, when the Disentailing
Law became effective in the Philippines, has
remained and subsists as a fideicomiso up to the
present date.
(6) That the plaintiffs' right of action has not
prescribed.
(7) That the registration of the entailed properties
under Act No. 496 must, with respect to the fifth of
the said properties conserved up to the present
time as a fideicomiso, be held to have been made
in favor of the beneficiaries of said fifth part.
(8) That the plaintiffs, as well as any other
descendants of the founder, are entitled to
participate in the fifth of the properties of
this mayorazgo in accordance with the sixth clause
of the deed of foundation and article 4 of the
Disentailing Law.
The motion of reconsideration was denied in so far
as it was incompatible with the final and
fundamental conclusions arrived at in the decision
and in the resolution, but the motion for a new
trial of the intervenors who appeared in order
that they or any other person entitled to
participate in one-fifth of the properties may
intervene, either by filing other complaints of
intervention or by amending the complaint filed
was granted. The dispositive part of said resolution
reads literally as follows:
ORDER
In view of the foregoing, it is ordered:
(a) That the motion for reconsideration filed by
counsel for the defendants is denied in so far as it
is incompatible with the fundamental conclusions
we have arrived at in the present cause and
enumerated in the preceding resolution.
(b) That the dispositive part of our decision in this
cause be set aside.
(c) That the record in the present case, together
with the petitions of intervention mentioned, be
returned to the Court of First Instance of Manila in
order that the new parties may intervene in this
cause and prove their alleged rights, and that the
original plaintiffs may, if they so desire, amend
their complaint.

(d) That the plaintiffs take the necessary steps to
include as parties to this cause all such known and
unknown persons who may have the right to
participate in the said fifth part of the properties
of this foundation, requiring them to appear and
prove their rights.
(e) That said Court of First Instance proceed to try
this cause and render judgment as to the amount
to which the original parties and those who may
intervene may be entitled as their participation in
the fifth of the properties of this mayorazgo.
(f) That the stipulation of facts subscribed on
August 30, 1924 by Attorneys Sanz and Blanco on
behalf of the plaintiffs and Araneta & Zaragoza on
behalf of the defendants, for all intents and
purposes and with respect to the parties affected,
is held as subsisting, as well as the oral and
documentary evidence presented by the parties
during the original trial of the cause, the original
parties as well as o hereafter may intervene, being
entitled to introduce such additional evidence as
they may desire upon the subject matter of the
trial herein ordered. (Barretto vs.Tuason, 50 Phil.,
888, 966, 967.)
The case was remanded to the court of origin for
the purpose above-mentioned, and after the filing
of many complaints of intervention by a number of
persons claiming to be relatives of the founder and
of his younger children and, therefore, entitled to
participate in one-fifth of the properties, on
suggestion of counsel for the parties the court
appointed Modesto Reyes as referee, and upon his
death, Attorney Crispin Oben. Both referees filed
their written reports, although that of the former
does not resolve the major portion of the
questions raised due to his premature death, and
at the trial various objections were interposed
which were resolved by the court. In its decision
the court approved most of the findings and
recommendations of the last referee, but modified
others which in its opinion were not supported
either by the proven facts or the applicable law.
The defendants and some of the intervenors, not
being likewise agreeable to certain portions of the
decision and order thus promulgated, have taken
the four appeals now before us.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 44
G.R. No. L-36811
APPEAL OF THE INTERVENORS SURNAMED
LEGARDA Y DE LA PAZ
The appellants in this case are the brother and
sisters Benito, Consuelo. Rita, surnamed Legarda y
de la Paz. These intervenors claim participations in
one-fifth of the properties in two capacities: First.
is descendants of the younger son Pablo Tuason,
and, second, for having inherited from their
parents the participations in one-fifth of the
properties which were sold to the latter by certain
relatives of the founder. They likewise claim the
share to which they would be entitled in the
participations of certain relatives of the younger
daughter, Eustaquia Ma. Tuason, who sold said
participations to the defendants. We will hereafter
have occasion to pass on this contention in
discussing the four assigned error.
The following is an enumeration of the names of
the vendors of their participations in favor of the
parents of the appellants, giving the dates of the
respective deeds:
1. DOROTEA TUASON, by a deed of absolute sale
executed by her in favor of Benito Legarda and
Teresa de la Paz.dated September 13, 1881.
(Exhibit A-Legarda.)
2. ISABEL ARENAS, by a deed of absolute sale
executed by her and her husband Francisco
Esteban, in favor of the spouses Benito Legarda
and de la Paz, dated October 2, 1884 Exhibit B-
Legarda.)
3. The brothers ENRIQUE. SEVERINO, and
DOMINGO, surnamed FRANCO, by a deed of
absolute sale executed by them in favor of the
spouses Benito Legarda and Teresa de la Paz,
dated November 7, 1884. (Exhibit C-Legarda.)
4. The sisters BALBINA SANTOS TUASON and
MAGDALENA SANTOS TUASON, by a deed of
absolute sale executed by them in favor of the
spouses Benito Legarda and Teresa de la Paz,
dated January 23, 1885. (Exhibit D-Legarda.)
5. APOLINARIA TUASON, by a deed of absolute
sale, executed by her in favor of the spouses
Benito Legarda and Teresa de la Paz, dates
February 17, 1885. (Exhibit F-Legarda.)

6. ESTEBAN DUARTE, ISIDRA MARIA DUARTE, and
ALEJANDRO DUARTE, by a deed of absolute sale
executed by them in favor of the spouses Benito
Legarda and Teresa de la Paz, dated February 17,
1885. (Exhibit F-Legarda.)
7. TOMASA TUASON DE TOBIAS, who was then a
widow, by a deed of absolute sale executed by her
in favor of the spouses Benito Legarda and Teresa
de la Paz, dated October 3, 1888. (Exhibit G-
Legarda.)
8. LUIS TUASON and PEDRO TUASON, by a deed of
absolute sale executed by them in favor of the
spouses Benito Legarda and Teresa de la Paz,
dated April 7, 1886. (Exhibit H-Legarda.)
9. ALEJANDRO, ANACLETO, TEODORICO, MARIA,
AND DIONISIA, surnamed CAMACHO y TUASON,
and TOMAS, ENCARNACION, MARIA, and
MERCEDES, surnamed MACARANAS y TUASON, by
a deed of absolute sale executed by them in favor
of the spouses Benito Legarda and Teresa de la
Paz, dated August 11, 1886. (Exhibit I-Legarda.)
10. FELIPE G. ALCALDE, by a deed of absolute sale
executed by him in favor of the said spouses,
dated October 27, 1886. (Exhibit J-Legarda.)
11. QUINTINA CASTILLO VIUDA DE JUAN N. C.
REYES, by a deed of absolute sale executed by her
in favor of the spouses Benito Legarda and Teresa
de la Paz, dated April 25, 1888. (Exhibit K-Legarda.)
The vendor, Quintina Castillo Viuda de Juan N. C.
Reyes, who had a participation in the entailed
properties as descendant in the direct line of the
founder, acquired the participation of the latter,
the said vendor Quintina Castillo having been
declared the sole and universal heir by will of the
said Juan N. C. Reyes, as evidenced by Exhibit K-1-
Legarda.
12. TEODORA EIZMENDI, by a deed of absolute
sale executed by her in favor of the spouses Benito
Legarda and Teresa de la Pam, dated October 3,
1888. (Exhibit L-Legarda.)
13. PETRONA MARIA DUARTE, by a deed of
absolute sale executed by her in favor of the said
spouses Benito Legarda and Teresa de la Paz,
dated October 8, 1888. (Exhibit L-1-Legarda.)
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 45
14. AVELINO TUASON alias ANDRES AVELINO
TUASON, by a deed of absolute sale executed by
him in favor of the father of the herein
intervenors, Benito Legarda, dated March 5, 1883.
(Exhibit M-Legarda.)
Of the said sales, only those executed by the
following were impugned: (1) Isabel Arenas; (2)
Tomasa Tuason de Tobias; (3) Luis Tuason and
Pedro Tuason; (4) Alejandro, Anacleto, Teodorico,
Maria, and Dionisia, surnamed Camacho y Tuason,
and Tomas, Encarnacion, Maria, and Mercedes,
surnamed Macaranas y Tuason; (5) Felipe G.
Alcalde, and (6) Teodora Eizmendi. The impugners
of the sales are relatives of the vendors who would
be entitled to succeed there in their respective
participations.
The appellants impute the following errors to the
appealed decision:
I. In finding that Tomasa Tuason de Tobias, Luis
Tuason, and Pedro Tuason, who sold their
participations in the properties in litigation to the
father and mother of the intervenors Legarda y de
la Paz, were already receiving the revenue on the
date the Disentailing Statute took effect.
II. In declaring null and void as to one-half of the
participations sold, instead of valid in their
entirety, the sale made by Tomasa de Tobias
(Exhibit G-Legarda) and that executed by Luis and
Pedro Tuason (Exhibit H- Legarda), and in not
adjudicating to the intervenors Legarda y de la Paz
the entire participations corresponding to said
vendors.
III. In excluding from the sales the participations
corresponding to the vendors in the portions
belonging to the younger children without
succession of the founder, and in not adjudicating
said participations to the intervenors Legarda y de
la Paz.
IV. In not adjudicating to the intervenors Legarda y
de la Paz the participations sold by some
descendants of the founder's daughter, Eustaquia
Maria Tuason, and in the event of the distribution
of said participations among the descendants, in
general, of the founder, in not adjudicating to said
intervenors the participations which would,
therefore, correspond to the vendors of the
Legardas.

V. In not adjudicating to the intervenors Legarda y
de la Paz the participation corresponding to the
vendor Dorotea Tuason as descendant of Santos
Luciano Tuason.
VI. In not ordering the defendants to pay legal
interest.
VII. In denying the motion for a new trial.
The first two assigned errors are intimately
related, as they refer to the sales of their
participations executed by Tomasa Tuason de
Tobias, Luis Tuason, and Pedro Tuason. Referee
Oben held in his report that the sales made by said
vendors did not transfer more than one-half of
their participations, because on the dates of the
sales they were the ones who received the
revenue and they could not dispose of more than
one-half of their participations, reserving the other
half in favor of their immediate successors, in
accordance with the provisions of article 4, in
connection with articles 2 and 3, of the
Disentailing Statute. The court entertained the
same opinion.
In support of their contention, the appellants
advance the following reasons: (1) That the said
vendors were not the ones who received the
revenue on March 1, 1864, when the Disentailing
Statute took effect; consequently, the reservation
of one-half is not applicable to the sales in
question; (2) that the present action of the
impugners to invalidate the sales as to one-half
thereof has already prescribed; (3) that the
appellants have acquired by prescription of owner
ship the entire participations sold; and (4) that the
inaction of the impugners of the sales for a period
of years without exercising their alleged right
estops them from claiming the participations sold,
under the doctrine known as estoppel by laches.
Although we have examined the oral and
documentary evidence adduced, to ascertain
whether Tomasa Tuason de Tobias, Luis Tuason,
and Pedro Tuason were in fact the ones who
received the revenue when the Disentailing
Statute took effect and we are in a position to
state that the first of said vendors was not in fact
the one who received the revenue on said date but
the Tuason brothers nevertheless, we do not
make any pronouncement on this question in view
of the fact that the first two assigned errors under
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 46
consideration should be resolved in connection
with the other arguments relative to prescription
of action and ownership and estoppel by laches.
It will be recalled that the deed of sale of the
participation of Tomasa Tuason de Tobias was
executed on October 3, 1888, and the sale of those
of the brothers Luis and Pedro Tuason on April 7,
1886; the complaints of intervention which
assailed the validity of the sales of said
participations for the first time were filed in 1927,
hence, approximately forty-one years have
elapsed from the first sale to the date its validity
was impugned for the first time, and about thirty
years from the execution of the second sale to the
said date.
The right now exercised by the impugners of the
sales is a personal action whose prescription
should be governed by the laws in force at the
time of the execution of the deeds of sale, that is,
April 7, 1886, and October 3, 1888, namely, Law 5,
Title 8, Book 11, of the Novisima Recopilacion, and
Law 21, Title 29, Partida 3, which provide for the
period of ten years (Crusado vs. Bustos and
Escaler, 34 Phil., 17).
Article 1939 of the present Civil Code provides:
ART. 1939. Prescription which began to run before
the publication of this Code shall be governed by
the prior law; but if, after this Code took effect, all
the time required by the same for prescription bas
elapsed, it shall be sufficient even if according to
such prior law a longer period of time would have
been required.
And article 1301 of the same Code provides:
ART. 1301. The action of annulment shall last four
years.
The term shall commence to run
In cases of intimidation or violence from the day
on which it has ceased;
In those of error or deceit or falsity of
consideration., from the date of the
consummation of the contract;
When the purpose of the action is to invalidate the
un authorized contracts of a married woman, from
the date of the dissolution of the marriage;

With respect to contracts made by minors or
incapacitated persons, from the date they were
released from guardianship.
According to these provisions, the action of
annulment, admitting that it had not yet
prescribed when the Civil Code took effect in these
Islands on December 7, 1889 (Mijares vs. Nery, 3
Phil., 195), should have commenced by the
impugners of the sales within the four (4) years
following the taking effect of the Civil Code, which
was not done.
The rules of prescription found in the Code of Civil
Procedure, Act No. 190, are not applicable to the
action of annulment under consideration, because
according to section 38 thereof, the prescriptive
period provided in former statutes should be
applied to rights of action which have already
accrued before it went into effect.
From the foregoing it clearly follows that the
action of annulment instituted and relied upon by
the impugners of the said sales has already
prescribed, both under the Laws of
the Partidas and the Novisima Recopilacion and
under the provisions of the Civil Code, and in the
latter case, even the supposition that the
prescriptive period for an action of annulment of
contracts had been extended to ten years, instead
of four, in accordance with the provisions of
section 43, No. 1, of the Code of Civil Procedure.
(Willard, Notes on Civil Code; Brillantes vs.
Margarejo and Belmonte, 36 Phil. 202.)
But the impugners of the sales argue that they do
not in fact institute an action of annulment, but
merely use the same as a defense, hence, they are
not affected by the laws of prescription. In the
able report of referee Oben, this phase of the
question was discussed at length, and he came to
conclusion, as did the court, that the impugners of
the sales have in fact brought an action of
annulment. Without going into another extended
discussion, we believe it will suffice to state, to
demonstrate the same conclusion, that in the
instant case those in the enjoyment of the
participations sold as well as the ownership
thereof are the appellants and not the impugners
of the sales, and that to recover the rights lost
under the deeds of sale they executed, the latter
have to avail themselves of an action of
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 47
annulment. In this sense, at least, they should be
under stood as bringing the action instead of
simply defending themselves, aside from the
indisputable fact that, to recover the participations
which they sold, they found it necessary to file
complaints of intervention, which are really
complaints under the letter and spirit of section
121 of the Code of Civil Procedure.
As to the question of acquisitive prescription,
likewise invoked by the appellants, we hold that
due to the long lapse of time they have acquired
by prescription whatever rights the impugners of
the sales had in the participations which they sold.
Addressing ourselves to appellants' last argument,
it should again be stated that they and their
predecessors have enjoyed the revenue
corresponding to the participations which they
have acquired and that during the period that has
elapsed, the vendors and impugners of the sales
have done nothing to recover their alleged rights.
Such conduct insurmountably bars the instant
action of annulment under the doctrine of
estoppel by laches. In the case of Buenaventura vs.
David (37 Phil., 435), speaking of the said doctrine,
we said:
. . . The assertion of doubtful claims, after long
delay, cannot be favored by the courts. Time
inevitably tends to obliterate occurrences from the
memory of witnesses, and even where the
recollection appears to be entirely clear, the true
clue to the resolution of a case may be hopelessly
lost. These considerations constitute one of the
pillars of the doctrine long familiar in equity
jurisprudence to the effect that laches or
unreasonable delay on the part of a plaintiff in
seeking to enforce a right is not only persuasive of
a want of merit but may, according to the
circumstances, be destructive of the right
itself. Vigilantibus non dormientibus equitas
subvenit.
And in the case of Tuason vs. Marquez (45 Phil.,
381), the same principle was again applied as
follows:
The equitable doctrine termed with questionable
propriety "estoppel by laches," has particular
applicability to the fact before us. Inexcusable
delay in asserting a right and acquiescence in
existing conditions are a bar to legal action. . . .

We see no good reason why the said equitable
doctrine should not be applied to the case at bar.
The impugners of said sales have let pass a number
of years from the accrual of their right of action to
annul the sales without exercising such right, and
have voluntarily permitted appellants'
predecessors in interest to enjoy the participations
sold; in which circumstances it is the duty of the
courts to restrict, instead of encourage, the
granting of a right already lost.
The third assigned error refer to the sales executed
by some descendants of the founder who sold the
participations that would come to them as
descendants likewise of the younger children of
the founder. The court at first approved the report
of referee Oben declaring valid the sales of the
participations coming from the younger children
with succession as well as from those without
succession. But the court, in its order of April 8,
1931, modified its decision declaring invalid the
sales of the participations coming from the
younger children without succession. From this
latter resolution the appeal was taken. The reason
alleged by the court in support of its last order
was, that the said sales were illegal because they
conveyed rights not known and determined at the
time of the execution of the deeds of sale. We do
not see the force of this argument. If the sales
were valid as to the participations coming from the
younger children with succession, with more
reason should the sales of the participations
coming from the younger children who died
without succession be declared equally valid, as in
both cases the sale of existing rights, known and
determinable, was involved, as said participations,
so far as the vendors were concerned, arose and
were acquired by the latter from the death of their
predecessors in interest, the younger children.
(Article 657 of the Civil Code.) For this reason we
find the third error tenable and sustain the validity
of the sales of said participations.
The plaintiffs and the defendants had stipulated
when the original case was heard that the younger
daughter, Eustaquia Ma. Tuason, died without
succession, but it developed that the said
deceased in fact left descendants some of whom
sold their participations to the defendants. The
referee stated in his report that such participations
have neither been sold nor legally acquired by the
defendants because they were estopped by their
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 48
stipulation with the plaintiffs to the effect that
said younger daughter died without descendants.
The court differed from this and held in its decision
that there was no such estoppel, and that the
defendants validly acquired the participations sold
to them. The herein appellants, Legarda brothers
and sisters, by their fourth assigned error, now
attempt to reverse the finding of the court that the
defendants are not thus estopped. And appellants'
purpose is obvious: if the sales are invalidated, the
participations, subject matter thereof, would be
distributed among all the relatives of the said
younger daughter, and appellants will naturally
receive a certain aliquot part thereof.
We agree with the court that the defendants are
not estopped just because they stipulated that
Eustaquia Ma. Tuason left no succession. And this
proposition is clear by simply taking into account
that the defendants never agreed that they had
not purchased the participations of the
descendants of the said younger daughter. The
stipulation referred only and exclusively to the
succession or descendants of the said younger
daughter and cannot be logically extended to the
sales made by several of her descendants.
Moreover, as properly observed by the court, to
sustain appellants' theory would result in the
absurd case of the other descendants of said
younger daughter who did not sell their
participations being deprived thereof just because
the original parties stipulated that their
predecessor in interest left no succession. We,
therefore, rule that the fourth assigned error is
untenable.
The fifth error relates to the participations of
Dorotea Tuason which she sold to the appellants.
This vendor was entitled to a double participation
coming from two sources, to wit, from the younger
children Santos Luciano Tuason and Felix Bolois
Tuason. In amendatory report of referee Oben the
participation of this vendor as descendants of
Santos Luciano Tuason was overlooked. The
appellants filed a motion of reconsideration
asking, among other things, that the participation
of said vendor as descendant of Santos Luciano
Tuason be likewise adjudicated to them. The court
granted the motion, but in its order it was stated
that the participation of Dorotea Tuason coming
from Felix Bolois Tuason will be adjudicated to the
appellants, instead of that coming from Santos

Luciano Tuason. In other words there was a
transposition of names, hence, appellants state in
their brief that this involves a mere correction of a
clerical error.
In view of the foregoing we find the fifth assigned
error well-founded.
In their sixth assigned error the appellants contend
that the defendants are bound to pay them legal
interest on the amounts of money to be
adjudicated to them as their participations in the
one-fifth, alleging as a reason therefor that the
defendants were guilty of delay from the taking
effect of the Disentailing Statute ordering the
distribution and delivery of the fifth to the persons
entitled to it, among whom were said appellants.
The contention is without merit in view of the fact
that in the decision rendered in the original case, it
was held that the plaintiffs, whose position was
like that of the herein appellants, were entitled to
an accounting of the expenses and revenues of
said properties and to receive that corresponding
revenues, from January 1, 1923, until the defend
ants deliver to them their participations in the
properties of the foundation. The revenues thus
adjudicated were in lieu of legal interest claimed
by the plaintiffs. For these reasons, the sixth
assigned error is untenable.
The seventh and last assigned error need not be
discussed being a corollary of the preceding ones.
Recapitulating all that has been said so far, it
results:
1. That the sales of their participations made by
Tomasa Tuason de Tobias, Luis Tuason and Pedro
Tuason in favor of the appellants, are valid in their
entirety and should, therefore, be adjudicated to
the latter; thus resolving favorably the first two
errors assigned;
2. That the sales made by some descendants of the
founder, of their participations coming from the
younger children without succession, are likewise
valid, and said participations should be
adjudicated to the appellants. This also resolves
favorably the third assigned error;
3. That the participation of Dorotea Tuason as
descendant of Santos Luciano Tuason should be
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 49
adjudicated to the appellants; thereby resolving
favorably the fifth assigned error; and
4. That the fourth and sixth assigned errors are
overruled as untenable.
G. R. No. 36827
APPEAL OF THE INTERVENOR ANA BARCINAS
TORRES (alias ANA BARCINAS PEREZ) AND OTHERS
It will be recalled, from what has been said in
connection with the first appeal, that Eustaquia
Ma. Tuason died leaving succession,
notwithstanding the stipulation to the contrary by
the plaintiffs and the defendants at the trial of the
principal case. The herein appellants are
descendants of the younger daughter Eustaquia
Ma. Tuason. All of them, with the exemption of
Tomas Barcinas y Reyes, are descendants of Tomas
Barcinas, who, with the said Tomas Barcinas y
Reyes, sold all their rights, interest, and
participation in one-fifth of the revenue of
the mayorazgothrough their attorney-in-fact
Manuel de los Reyes, in favor of the estate of
Teresa de la Paz.
Said appellants attribute to the appealed decision
the following errors:
I. We hereby adopt as our own all of the pertinent
assignments of errors of the other intervenors in
G.R. Nos. 36811 and 36840, which are applicable
to the intervenors here and, by reference, hereby
incorporate their arguments in support of said
errors.
II. The lower court erred in holding the sale
executed by Manuel de los Reyes, pretending to
act under and by virtue of aforesaid void power of
attorney, valid, and in failing to hold same null and
void.
III. The lower court erred in holding the sale
executed by Manuel de los Reyes, pretending to
act under and by virtue of aforesaid void power of
attorney, valid, and in failing to hold same null and
void.
IV. The lower court erred in interpreting aforesaid
sale executed by Manuel de los Reyes, pretending
to act under aforesaid void power of attorney, and
in so interpreting said sale as to deprive these

intervenors of their true rights under
the mayorazgo founded by Don Antonio Tuason.
Exhibit Tuason-1 shows that on June 8, 1894, the
said Tomas Barcinas y Cruz, Tomas Barcinas y
Reyes, Benita Barcinas y Cruz, and Maria
Manibusan y Barcinas, through their attorney-in-
fact Manuel de los Reyes, sold all their
participations in one-fifth of the revenue of
the mayorazgo which they had in possession as
descendants of the younger daughter Eustaquia
Ma Tuason, including all their rights and interest in
the said one-fifth of the revenue, for the sum of
P5,000. In the said deed of sale there was
reproduced in full the power of attorney which
said vendors had conferred on their attorney-in-
fact Manuel de los Reyes, executed on July 4, 1893,
in the City of Agaa, capital of Marianas Islands,
before the judge of first instance acting as notary
in the absence of the notary of said district.
The appellants contend that the sale is null and
void because the power of attorney which the
vendors conferred on their agent was not ratified
before a notary but before a judge of first instance.
The referee, in passing upon the legal point
involved, said:
In order that the sale made by Manuel de los
Reyes behalf of the Barcinas may be valid, a
written power of attorney was sufficient, without
the necessity of converting said power of attorney
into a public document. (Section 335, No. 5, Code
of Civil Procedure; article 1278, Civil Code. Without
dis therefore, whether or not under the laws in
force in the Marianas Islands in 1893, the judge of
first instance could act as notary public, the
indisputable fact remains that those named as
grantors in the instrument in question executed
said power of attorney; and this execution of the
written power of attorney was sufficient to
authorize the attorney-in-fact Manuel de los Reyes
to execute a valid sale of the property of his
principals.
The undersigned is of the opinion, therefore, that
the deed Exhibit Tuason-1 legally transferred to
the estate of Doa Teresa de la Paz what appears
in said deed, belonging to the grantors therein
named:
The court affirmed the conclusion of the referee in
the following language:
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 50
The court agrees with the referee that,
notwithstanding the execution of the power of
attorney in the City of Agaa before the judge of
first instance of the Marianas Islands the sale was
valid, because according to the said Exhibit
Tuason-1, the judge of first instance of said Islands,
"Acted with the witnesses then present, Don
Manuel Aflague and Don Juan del Rosario, in the
capacity of notary public" in the absence of this
official in that district (emphasis ours). The
intervenors Barcinas, represented by Attorney
Wolfson, have not shown that on the date of the
execution of the power of attorney, June 8, 1894,
there was a notary in the City of Agaa; on the
contrary, said Exhibit Tuason-1 shows that there
was no such notary in the district, hence, the judge
of first instance acted in that capacity. There being
no notary, we cannot insist that the power of
attorney be executed before a notary. It was
sufficient that it be executed before the judge of
first instance acting in the capacity of notary
public. Wherefore, the court is of the same opinion
as the referee, that the sale executed by the
intervenors Barcinas, Exhibit Tuason-1, in favor of
the estate of Doa Teresa de la Paz is valid.
The appellants have not cited any law especially
applicable to the Marianas Islands at the time the
power of attorney in question was executed,
whereby the intervention of a notary in the
execution of said kind of document was made
absolutely necessary. In 1893 the present Civil
Code was already in force in the country, and the
provisions thereof applicable to the subject are as
follows:
ART. 1710. An agency may be express or implied.
An express agency may be created by a public or
private instrument or even orally.
The acceptance may also be express or implied,
the latter being inferred from the acts of the
agent.
ART. 1713. An agency created in general terms
only includes acts of administration.
In order to compromise, alienate, mortgage, or to
execute any other act of strict ownership, an
express power is required.

The power to compromise does not give authority
to submit the matter to arbitrators or friendly
adjusters.
The pertinent portion of section 335 of the Code of
Civil Procedure, provides:
SEC. 335. Agreements invalid unless made in
writing. In the following cases an agreement
hereafter made shall be unenforceable by action
unless the same, or some note or memorandum
thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of
the agreement cannot be received without the
writing, or secondary evidence of its contents:
xxx xxx xxx
5. An agreement for the leasing for a longer period
than one year, or for the sale of real property, or
of an interest therein, and such agreement, if
made by the agent of the party sought to be
charged, is invalid unless the authority of the
agent be in writing and subscribed by the party
sought to be charged.
It, therefore, follows that under the legal
provisions above quoted, the power conferred
upon Manuel de los Reyes is valid although no
notary public intervened in its execution. And the
sale executed by said attorney-in-fact is likewise
valid because in the execution of the
corresponding deed the essential requisites
provided by law were complied with.
The above refuses appellants second, third, fourth
assigned errors relating to the validity of the
power of attorney and the deed of sale of the
participations already referred to.
The first assignment does not specify any error
committed by the court and the appellants only
make and re produce therein, as their own, the
assignments of error of the intervenors-appellants
in G.R. Nos. 36811 and 36840. It is not incumbent
upon us to consider seriously an assignment of
error of this nature, although the assignments of
error made by the other appellants will be
considered and resolved in due time.
In resume, we find the four assigned errors of
these appellants untenable.
G.R. No. 36840
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 51
APPEAL OF ESTANISLAOA ARENAS AND OTHERS
The herein appellants are likewise descendants of
the founder of the mayorazgo, Some of them
directly sold to the defendants their participations
in one-fifth of the revenue and all their rights and
interest in the mayorazgo; the others are
descendants of other relatives of the founder who
likewise sold their participations in one-fifth of the
revenue and all their rights and interest in
the mayorazgo in favor of the same defendants.
The deeds evidencing the sales have been marked
as Exhibits 2, 3, 4, 5, 6, 7, 10, 11 12, 13, 14, 16, and
17.
The appellants impugn all the sales as null and
void and in their brief assign the following errors:
I. The court erred in holding that, by the deeds of
sale executed by the intervenors-appellants, or
their predecessors in interest, in favor of the
defendants and the predecessors in interest of the
intervenors Legarda and sisters, the participations
of the former in the ownership and dominion of
one-fifth of the properties of the mayorazgo were
sold and in not declaring said sales null and void.
II. The court erred in finding that on the date of the
execution of the sale made by Israel Arenas the
latter had no immediate successor and in
disapproving the report of the referee on this
question.
III. The court erred in finding that Camila Tuason
died after the year 1864, when the Disentailing
Statute took effect in the Philippines, and not in
1863 as found by the referee."
In support of the first assigned error, the following
propositions are advanced: (1) That the vendors
intended to sell only their participations in one-
fifth of the revenue and, not the ownership or
other rights which they had in the mayorazgo,
consequently, the sales were null and void for lack
of said vendors' consent; (2) that the purchasers
were administrators or trustees of the properties
of the mayorazgo, and, therefore, fall under the
prohibition found in article 1459 of the Civil Code;
(3) that the purchasers the spouses Legarda, at the
time they purchased the participations of some of
the intervenors, were legal administrators of the
properties of the mayorazgo, and, therefore,
lacked the capacity to buy in accordance with the

provisions of the Novisima Recopilacion then
applicable; (4) that the purchasers obtained the
vendors' consent through fraud, and (5) that the
said are moreover null and void under the express
provisions of article 4, in connection with article 3,
of the Disentailing Matute, for lack of prior formal
appraisal and partition of the properties
constituting the fifth of the mayorazgo.
Considering the view we have taken in respect of
the first assigned error, a view which we will
hereafter set forth, it would seem unnecessary to
answer the arguments advanced by the appellants.
However, we will briefly state the following:
After a careful examination of all the deeds of sale,
we hold. as did the referee and the court, that the
vendors sold not only their participations in the
revenue but also all their rights and interest in the
properties of the mayorazgo. In other words, said
vendors in fact sold their participations and rights
in the ownership of the mayorazgo, to which the
one-fifth of the revenue was converted in view of
the enforcement of the Disentailing Statute in the
Islands.
The purchasers, strictly speaking, were not legal
administrators or fiduciaries of the rights sold to
them by the vendors, at least in the sense in which
the prohibition then existing was expressed and
established. As the court correctly stated, the
purchasers, in connection with the transactions,
acted as mere coproprietors or tenants in
common, and the right to buy which they then
exercised was expressly recognized by law.
The fraud imputed to the purchasers has not been
proved; the evidence shows that the vendors had
full knowledge of the rights which they sold and
that thereby they conveyed to the vendees all the
interest which they could have in the mayorazgo.
And with respect to the lack of formal appraisal
and partition of one-fifth of the properties of
the mayorazgo, prior to the sales, requisites found
in article 4, in connection with article 3, of the
Disentailing Statute, it is sufficient to state our
opinion that non-compliance therewith should not
produce either the effect or the meaning
attributed to them by the appellants. It seems to
us that the court was right in interpreting that the
appraisal, partition, and intervention of the
immediate successor are required only in cases in
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 52
which the actual possessor of properties or the
one who receives the revenue desires to dispose of
his participations in a specific and particular form,
but not when, as in the case under consideration,
undivided and indeterminate rights or
participations were sold. In case of an hereditary
estate, for instance, a coheir may sell his
successory right, although undetermined, without
the necessity either of a prior appraisal or partition
of said estate or notice to or intervention by the
other coheirs.
We will now briefly state the view we have taken
of the first assigned error. The most recent sales
impugned were made between the year 1905 and
1910; the oldest deeds were executed between
the years 1891 and 1898. On the other hand, the
appellants challenged the validity of said sales for
the first time in January and February, 1929.
Theretofore, at least, nineteen years had elapsed
as to the sale effected in 1910. We hold that the
lapse of the period of nineteen years is more than
that required for the prescription of the action of
annulment began by the appellants through their
complaints of intervention, and in support of this
holding we recur here to all that we said on the
subject in resolving the appeal interposed by the
intervenors Legarda. We are likewise of the
opinion that the appellants are now barred from
claiming any right in connection with said sales
under the doctrine of estoppel by laches. We
repeat what we said on this point in the appeal of
the Legardas, to the effect that the validity of sales
may not be questioned anew after the purchasers
have enjoyed the participations sold and the fruits
thereof for many years.
The second and third assigned errors refer to the
sales made by Isabel Arenas and Alejandro
Camacho and brothers, respectively. The
intervenor-appellant Rafael Arenas contends that
the sale executed by his mother Isabel Arenas is
null and void as to one-half because said vendor
had an immediate successor at the time of the
sale. The Camachos, in turn, allege that the sale
they executed is likewise null and void as to one-
half because, contrary to the finding of the court,
they were the ones who received the revenue at
the time the Disentailing Statute took effect, and
they contend in this connection that their mother
Camila Tuason died in 1863 and not after 1873, as
found by the court. We do not find it necessary to

discuss the question of fact thus raised, because in
both cases prescription and the rule of estoppel by
laches are applicable against the appellants. On
both grounds we rule that the appellants may not
now question the validity of the aforesaid sales.
It follows from what has been said that the three
errors assigned by the appellants are overruled as
not well-founded.
G.R. No. 36872
APPEAL OF THE DEFENDANTS AUGUSTO H.
TUASON Y DELA PAZ AND OTHERS
This appeal is interposed by the defendants who
were the possessors of all the properties of
the mayorazgo at the time the principal case was
instituted and before the Bank of the Philippine
Islands was appointed receiver. Said appellants
impute to the appealed decision and order the
following error:
FIRST ERROR
The lower court erred in not passing upon certain
vital issues on the ground that they had been
definitely concluded.
SECOND ERROR
The trial court erred in not finding that the fifth
part of the mayorazgo belongs in fee simple to the
defendants.
THIRD ERROR
The trial court erred in distributing the fifth part as
follows: three-eighths thereof among all the
descendants of the founder (including those of the
first possessor of the mayorazgo) per stirps of
great grandchildren, including those who have
already died; and the remaining five eighths
among the descendants of the five younger
children of the founder who died leaving
succession, distributing the same per stirps of said
children.
FOURTH ERROR
The trial court erred in not finding that the plan of
distribution more in conformity with the
provisions of article 4 of the Disentailing Law,
would be to assign to each recipient (whether
plaintiff or intervenor) a portion of the one-fifth of
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 53
the entail in the proportion that the pension which
he used to receive bears to the net income of the
fifth on the entail.
FIFTH ERROR
The trial court erred in not distributing the three-
eights exclusively among the defendants.
SIXTH ERROR
In case the preceding assignment of error be over
ruled, we respectfully submit that the trial court
erred in distributing the three-eights in equal
portions per stirps of the great great grandchildren
(tataranietos), including those who have already
died, instead of distributing the same only among
those that are living, or, more properly, instead of
distributing the same per stirps of the children of
the founder.
SEVENTH ERROR
The trial court erred in not finding what is the
value in pesos of the different participations
assigned to the different parties in this case.
EIGHT ERROR
The trial court erred in not finding that the
plaintiffs having filed a personal action against the
defendants asking judgment in the sum of five
hundred thousand pesos (P500,000), for damages
which the said parties agreed were the value of
the one-half of the so-called family trust are now
barred to claim participation in the properties
them- selves thereby converting the action into
one in rem.
NINTH ERROR
The trial court erred in finding that the sales
executed by Mariano Arenas, Estanislaoa Arenas,
Julio Tuason, Severino, Tuason, Encarnacion Rojo
and Candelaria Rojo were null and void as to one-
half thereof.
TENTH ERROR
Assuming that the said sales as to one-half thereof
should be declared null and void, the trial court
erred in not condemning the sellers or their
successors in interest to return one-half of the
price received by them from the purchasers, plus
the legal interest thereof the time of the sale.

ELEVENTH ERROR
The trial court erred in finding that the sales
executed by the intervenors or their predecessors
in interest of any rights that they might have had
in the fifth of the mayorazgo in question, did not
cover the right that they had to participate in the
three eighths which originally correspond to the
three younger children of the founder who died
without leaving succession.
TWELVE ERROR
The trial court erred in not requiring the referee to
file an amended report in conformity with the
order of the trial court dated April 9, 1931.
By way of preliminary observation we will state
that it is not our intention to hold that the
questions raised by the appellants in their first,
second, third, fourth, fifth, sixth, and eighth
assigned errors are res judicata because they have
been submitted, discussed at length, and resolved
in the decision rendered in the principal case,
because we believe this to be unnecessary; but we
understand, and so decide, that unless it is shown
that said questions have been erroneously
resolved and that there exist sufficient reasons
justifying that we renounce the conclusions
already reached, it is our duty to adhere to them
and to apply the principles laid down in the
aforesaid decision in so far as they are applicable
to the same points raised anew in the instant
appeal.
The first assignment does not specify any error
committed by the court, hence, we are not bound
to resolve any specific question; but in the
development of the idea which the appellants
have apparently attempted to bring out, they
argue in synthesis that in the resolution granting a
new trial this court again left open for discussion
the same points already considered and resolved
as well as the new ones which the parties may
desire to raise in the aforesaid new trial. An
examination of said resolution, however, shows
just the contrary. In the said resolution the
following language was employed.
Counsel for defendants insist upon their
contentions maintained from the beginning and
disposed of in our decision. They raise some points
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 54
in their briefs, however which require a few brief-
remarks. (Baretto vs. Tuason, 50 Phil., 888, 959.)
xxx xxx xxx
Resolving, therefore, said motion for
reconsideration, we reiterate the following
conclusions, declaring finally:
(1) That the first-born possessor of
this mayorazgo was a mere usufructuary of the
entailed properties.
(2) That this mayorazgo was a fideicamiso.
(3) That the charge to distribute the fifth of the
revenues from said properties was a family trust.
(4) That article 4 of the Disentailing Law of October
11, 1820 is applicable to the present case.
(5) That the fifth of the properties into which, by
virtue of said law, the fifth of the revenue was
converted on March 1, 1864, when the Disentailing
Law became effective in the Philippines, has
remained and subsists as a fideicomiso up to the
present date.
(6) That the plaintiffs' right of action has not
prescribed.
(7) That the registration of the entailed properties
under Act No. 496 must, with respect to the fifth of
the said properties conserved up to the present
time as a fideicomiso, be held to have been made
in favor of the beneficiaries of said fifth part.
(8) That the plaintiffs, as well as any other
descendants of the founder, are entitled to
participate in the fifth of the properties of
this mayorazgo in accordance with the sixth clause
of the deed of foundation and article 4 of the
Disentailing Law.
(9) The pronouncements made in our decision with
respect as to the amount of the participation of
each claimant shall be set aside in view of the
motions of the intervenors which we about to
examine. (Ibid., pp. 963, 964.)
No clearer and more categorical language could
have been employed to express the intention of
the court to adhere to and reiterate the
conclusions and principles already established in
the decision originally rendered, notwithstanding

the motion of reconsideration and new trial.
Neither can there be any doubt as to the questions
which the court considered definitely resolved and
which should not be the subject of further
discussion.
That this court did not intend to allow the parties
to raise anew the fundamental questions already
resolved, and that the new trial should be limited
exclusively to a determination of the amount to
which the intervenors could be entitled in the fifth
of the properties, is clearly shown by the following
quoted paragraphs which form a part of the order
found in the aforesaid resolution:
(a) That the motion for reconsideration filed by
counsel for the defendants is denied in so far as it
is incompatible with the fundamental conclusions
we have arrived at in the present cause and
enumerated in the preceding resolution.
xxx xxx xxx
(e) That said Court of First Instance proceed to try
this cause and render judgment as to the amount
to which the original parties and those who may
intervene may be en titled as their participation in
the fifth of the properties of this mayorazgo.
(Ibid p. 966.)
Defendants-appellants intimate that the said
resolution is without legal force because it was not
concurred in by a sufficient majority of the
members then composing this court. A sufficient
answer to this is, that the aforesaid resolution was
authorized and concurred in by eight of the nine
members then composing this court.
In the second assigned error, the appellants again
insist that the naked ownership of the fifth of the
properties of the mayorazgo belongs to them. This
question was already definitely resolved in the
decision as well as in the resolution on the
motions of reconsideration and new trial wherein
was stated:
Counsel for defendants allege that the properties
of this foundation passed into the hands of the
heir, Jose Victoriano Tuason, completely free, one-
half by testamentary inheritance and the other
half by virtue of article 2 of the Disentailing Law.
This, however, was not the will of the testator,
Don Jose Severino Tuason, nor the will of his
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 55
successors, all of whom respected
the mayorazgo and held it as subsisting de facto.
In no event could the properties pass into the
hands of the heir Jose Victoriano Tuason
completely free. It was necessary to preserve them
intact until they were appraised and the fifth part
thereof had been segregated for distribution
among the recipients of the revenues and their
immediate successors, in accordance with the
provisions of article 4 of the statute.
It is a fact that the trust subsisted and still subsists.
The successive possessors of the entail have
preserved and preserve the properties of
the mayorazgo respecting and distributing the fifth
of the revenue among the descendants of the
younger children of the founder.
But the entail could not and cannot continue
perpetually. Its abolition was decreed by the
statute as of the 1st day of March, 1864. Its
perpetual survival would be contrary, not only to
the Disentailing Law of October 11, 1820, but also
the Civil Code in force which, under articles 781
and 785, paragraph 2, positively prohibits
perpetual entails.
If up to the present time the entail in question
subsists, this has been because the interested
parties have been maintaining it without
proceeding to the appraisal and distribution of the
entailed properties, as required by articles 2 and 4
of the Disentailing Law; and in accordance with the
doctrine announced by the Supreme Court of Spain
on October 29, 1857, above cited, the properties of
this mayorazgo, pre served de facto by the
interested parties as entailed, legally retain this
character for the purposes of their partition which
must be effected in accordance with the statute of
October 11, 1820.
From what has been said it follows that since
March 1, 1864, the date upon which the said
Disentailing Law came into force in the Philippine
Islands, the successive possessors of the properties
of this mayorazgoconstituted themselves trustees,
charged with the administration and preservation
of the said properties and the distribution of the
fifth of the revenue among the descendants of the
younger children of the founder. Consequently,
after the entail was abolished, one-half of the
four-fifths of the proof Asgo continued subject to

the trust in favor of its beneficiaries, the heirs of
Jose Victoriano Tuason, who was the one called to
succeed immediately to the mayorazgo on the
date of its disentailment (article 2, Statute), and
the fifth of the said properties in favor of the
beneficiaries, the recipients of the fifth of the
revenue in accordance with the foundation.
Summing up the effects produced with respect to
this mayorazgo by the Disentailing Law on the one
hand, and the conduct of the interested parties on
the other, we may say first, that the trust of the
naked ownership instituted in favor of the
descendants of the founder indefinitely was
abolished, in consequence of the disentailment;
and second, that the trust of the usufruct of the
properties became converted into a trust of the
properties themselves, the beneficiaries being the
same, but as owners; that is to say, the first-born
successor as to one-half of four-fifths of the said
properties, and the descendants of the younger
children of the founder with respect to the
remaining fifth. (Ibid., pp. 936-938.)
Resolving, therefore, said motion for
reconsideration, we reiterate the following
conclusions, declaring finally:
xxx xxx xxx
(5) That the fifth of the properties into which, by
virtue of said law, the fifth of the revenue was
converted on March 1, 1864, when the Disentailing
Law became effective in the Philippines, has
remained and subsists as a fideicomiso up to the
present date.
xxx xxx xxx
(7) That the registration of the entailed properties
under Art No. 496 must, with respect to the fifth of
the said properties conserved up to the present
time as a fideicomiso, be held to have been made
in favor of the beneficiaries of said fifth part.
(8) That the plaintiffs, as well as any other
descendants of the founder, are entitled to
participate in the fifth of the properties of
this mayorazgo in accordance with the sixth clause
of the deed of foundation and article 4 of the
Disentailing Law. (Ibid., pp. 963, 964.)
The arguments now advanced by the appellants in
sup port of their second assigned error are not
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 56
entirely new because they were already brought
out when the question was submitted and
discussed in the principal case and we do not find
therein any weighty reasons justifying our
repudiation of the conclusions and principles
established in the decision rendered in the original
case.
The third, fourth, fifth, and sixth assigned errors
may be jointly considered because they all refer to
the distribution of the one-fifth of the properties.
In the paragraphs here after quoted of the original
decision, it will be seen that the distribution of the
fifth and those entitled to it under the instrument
of foundation were already dealt with and
resolved:
PERSONS ENTITLED TO THE REMEDY
The recipients of the fifth of the revenues are
indicated in the sixth clause of the instrument of
foundation, the text of which we again transcribe:
"It shall be his duty to set apart one-fifth of the net
revenue derived from the entail each year, and
that one-fifth part shall be divided into eight parts,
giving one to each of my eight children, and in
their absence, to my grandchildren, but upon the
understanding that if one or more of my children
should die without succession, the part belonging
to them shall be distributed among my children
and other descendants of mine according to their
needs and as prudence may dictate to him, so that,
when the time arrives that none of my children are
alive, it shall then be always understood that said
fifth part shall be applied to all those of my
descendants who are poor, the apportionment to
be made by him prudently according to their needs
and therefore the possessor of the entail is hereby
charged to discharge this duty with conscientious
scruple." (Ibid., pp. 941, 942.)
xxx xxx xxx
If the descendants of the younger children,
subsequent to the grandchildren of the founder,
are granted under certain circumstances the right
to possess the mayorazgo itself, with all its
properties, we do not see how it can be said that
these descendants, subsequent to grandchildren,
the sons of sons, were prohibited from receiving a
fifth of the revenues of said properties.

It is our understanding that the intention of the
founder was not to restrict the grant of the
usufruct of the fifth of the revenue by limiting it to
a certain number of generations of the younger
children, but that he intended to extend it to all of
the descendants of the latter. If this is so we
should apply to the case the rule of law of
the Partidas (Rule 28, Title 34, 7th Partido), which
says: "Privilegia recipiunt largum interpretationem
voluntati consonan concedentis." (Privileges are to
be interpreted with liberality in accordance with
the will of him who grants them.)
Furthermore, that the present plaintiffs are
entitled to receive the fifth of the revenues has
been repeatedly recognized by the defendants
when they purchased, in 1905, from Don Jose
Rocha y Ruiz, and in 1916 from Doa Remedios
Aragon y Rocha their respective participations in
the fifth of the revenue, according to paragraph 16
of the stipulation of facts, and while in the years
1917 to 1921 the said defendants delivered to Don
Antonio Maria Barretto y Rocha, and to Don
Santiago, Don Julio and Don Andres Rocha y Ruiz
Delgado, and their sister, Doa Rosario; and in the
years 1917 to 1922, to Doa Isabel, Doa
Enriqueta, Doa Carmen, Don Antonio, Don
Alfredo and Don Clodoaldo Rocha y Pereyra, Don
Francisco Beech y Rojo, Don Ciriaco, Don Cayetano,
Don Pablo Leon and Don Tomas Tuason, and to the
minors Doa Consuelo, Don Juan, Doa Rosario
and Doa Carmen Tuason, and Doa Victoria
Rufina, Doa Ana Consolacion Tuason, and Doa
Asuncion Romana Tuason widow of Caballero,
their respective participations in the fifth of the
revenue, as appears from the cross-complaint of
the defendants, admitted in para graph 8 of the
stipulation of facts.
And it appears that the said Don Jose Rocha y Ruiz
was the son of Don Lorenzo Rocha, a grandson, in
turn, of Doa Gregoria N. Tuason (Exhibit 6 and
paragraphs 2 and 16 of the stipulation of facts):
that Doa Remedios Aragon y Rocha is a relative of
the founder (Exhibit 7, admitted in paragraph 16 of
the stipulation of facts) ; and that the said
recipients of the fifth of the revenue from the year
1917 to 1921 and from the year 1917 to 1922, are
all descendants of grandchildren of the younger
children of the founder. (Paragraphs 2 to 30,
admitted in paragraph 1 of the stipulation of
facts.) (Ibid., pp. 944, 945.)
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 57
xxx xxx xxx
Passing to the amount of the Participation which is
due them respectively, for the purpose of
determining this point we must have regard to the
intention of the founder, as it is expressed in the
instrument creating the mayorazgo. It was his will
that the fifth of the revenue should he divided into
eight parts, and that to each of his children, other
than his first born, one part should be given. Upon
the death of each of these children, by virtue of
the provisions of the instrument of foundation,
and by operation of law, their right to an eighth
part of the revenue which they received during
their lifetime was transmitted to their heirs. That
is, each of these eight portions of the fifth of the
revenue was transmitted from succession to
succession, within the stirps of each of the eight
younger children who died leaving succession. The
heirs of a younger son or daughter could legally
participate in the eight part corresponding to
another stirps, as long " heirs in the direct line of
this stirps survived; that is to say, each of the eight
portions of the fifth, except those corresponding
to young children born without succession. The
heirs of a younger child could not legally
participate in the eight corresponding to another
stirps, while heirs of this stirps in, the direct line
survive. That is to say, each one of the said eight
parts of the fifth, except those corresponding to
the younger children dying without succession,
was preserved and transmitted from generation to
generation within each respective stirps.
This plan of division of participation, based upon
the will of the founder and the precepts of the law,
is that which in our judgment must continue to
prevail, and is that which we shall follow in
determining the proportion which corresponds to
the plaintiffs in the half of the fifth of the
properties of this foundation.
Of the eight younger children four died without
sucession and the other four are the descendants
of the plaintiffs in this cause. Hence, four of the
eight portions, that is, one-half of the fifth of the
properties of this foundation, belong to the
plaintiffs herein under the plan of division which
has just been indicated. The other four portions,
that is, the one-half of the said fifth, which would
have corresponded to the stirps of the other four
younger children, if they had died leaving

succession, accrue, so to speak, both to the
defendants of the younger children leaving
succession and to the other descendants of the
founder.
The distribution of this accretion is made in
obedience to a plan distinct from that above
indicated, because the founder, foreseeing the
contingency, did not prescribe a quota for each
stirps of his younger children, but ordered that it
he delivered to descendants of both classes
without distinction of line or stirps. Consequently,
this one-half in accretion should be distributed
among the descendants of the founder in general,
who are the plaintiffs and some of the defendants,
but bearing in mind the different rights with which
each heir participates, by reason of the greater or
lesser proximity of his relationship to the founder,
for the purpose of determining if he is to
inherit per capita or per stirpes. We say some of
the defendants, because with the exception of the
ten mentioned in paragraph 5 of the complaint,
the other defendants are either persons whose
relationship has not been determined (paragraph 6
of the complaint) or have refused to become
parties to this action (paragraph 30 of the
complaint).
From what has been said it follows that one-half of
the fifth of the properties corresponding to the
younger sons leaving succession, four-fortieth
parts (4/40) of the whole of the properties of this
foundation must be divided into four equal
portions, because one portion, or one-fortieth part
(1/40) corresponds to each stirps of the said four
younger children. The other one-half of the said
fifth, that is to say, the other four-fortieth parts
(4/40) of the whole of the properties of this
foundation must be distributed in general among
the plaintiffs and some of the defendants, taking
into consideration the circumstances of their
respective heirships. (Ibid., pp. 946-948.)
The foregoing paragraphs contain conclusions of
fact and of law established after a careful study of
the provisions found in the foundation and of the
laws applicable to the case, and are squarely
applicable to the facts recently proved at the new
trial, except that five-eighths of the fifth should be
divided among the descendants of the five (5)
younger children with succession and the
remaining three-eighths of the fifth among the
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 58
relatives in general of the founder, because it
developed that the younger daughter Eustaquia
Ma. Tuason had left heirs, contrary to the
stipulation of the plaintiffs and the defendants.
The arguments advanced by the appellants in
support of said assignments of error do not justify,
in our opinion, a different result from that already
reached; in truth they are merely repetitions of the
same arguments already brought out by counsel
for the same appellants.
In the seventh assigned error, it is contended that
the court erred in not reducing the respective
participations of the parties to figures or pesos. It
is true that the court did not undertake the
arithmetical operations involved there in. but we
cannot conceive of this as an error subject to
modification or reversal, in view of the fact that
there was then no necessity therefor, and that
such work could be easily entrusted to the referee
after this decision has become final and the
records remanded to the court.
By their eighth assigned error the defendants-
appellants again reproduce their original special
defense to the effect that the plaintiffs could not
convert the personal action for damages which
they had originally commenced into an action in
rem, and that said plaintiffs are barred from
claiming any participation in the properties of
the mayorazgo.
This point was likewise considered and resolved in
the decision in the principal case, wherein it was
said:
In addition to the arguments mentioned
heretofore, counsel for defendants interpose as
obstacles to the action of plaintiffs the registration
of the title to the properties of the mayorazgo in
favor of the defendants, mentioned in paragraph
11 of the first special defense, under Act No. 496,
and the prescription of this action. The defendants
Doa Paz Tuason de Gonzales, Doa Consuelo
Tuason de Quimson, Don Juan Tuason and Doa
Albina Tuason inter pose as a defense to this
action the contention that the plaintiffs filed no
claim whatever in the proceedings had upon the
testamentary estate of Don Juan Jose Tuason de la
Paz, the father of the said defendants. which
testamentary proceedings were finally disposed of
and filed June 25, 1920.

If, as we have found and decided, the successive
possessors of the properties of
this mayorazgo were and have been mere trustees
of the said properties, holding them in trust for the
benefit of the beneficiaries, part of whom are the
recipients of the fifth of the revenues, and their
descendants, the registration of the title to said
properties under Act No. 496 in favor of the said
defendant must be deemed to have been effected
for the benefit of the beneficiaries of said
properties, part of whom are the present plaintiffs.
The doctrine established by this court in the case
of Severino vs. Severino (44 Phil., 343), is
applicable to this feature of the case.
Although the plaintiffs endeavored to demonstrate
that the said defendants registered the title by
fraud, it is our opinion that the alleged fraud has
not been proven in this action. Nevertheless, the
existence of fraud is unnecessary to arrant the
declaration that registration of the Title under Act
No. 496 is not a legal obstacle to this action
brought by plaintiffs, and the adjudication in favor
of those among them who are entitled thereto of
the portion pertaining to them of the properties so
registered. It was said in the case of Gilbert vs.
Hewetson (79 Minn., 326), cited with approval in
the case of Severino vs. Severino, supra:
"A receiver, trustee attorney, agent, or any other
person occupying fiduciary relations respecting
property or per sons, is utterly disabled from
acquiring for his own benefit the property
committed to his custody for management. This
rule is entirely independent of the fact whether
any fraud has intervened. No fraud in fact need be
shown, and no excuse will be heard from the
trustee." (Emphasis ours.)
With respect to the plea of prescription, counsel
for defendants contend that inasmuch as plaintiffs,
prior to the filing of the present complaint, had
made no effort to enforce their rights since the 1st
day of March, 1864, their action is barred. But
from the records it that up to the year 1922 the
defendant have been recognizing in the entries in
their books, and in deeds, such as Exhibits 6 and 7,
signed by Don Augusto Tuason de la Paz, as
grantee, the right of the descendants of the
younger children of the founder to the fifth of the
revenue, and therefore the trust which this charge
implies; furthermore, said defendants made
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 59
payments on account of the fifth of the revenue.
These acts of recognition and payments, made
during the said period of time, prevent the
operation of prescription. Section 50, Code of Civil
Procedure.)
Furthermore, this being a case which deals with a
trust which subsisted from the time of its
foundation and by virtue thereof up to March 1,
1864, and thereafter down to the present time by
the express will of the present parties, the defense
of prescription cannot be entertained. By virtue of
the said trust the possession of the said
defendants could not be regarded as a basis for an
acquisitive prescription in their favor against the
plaintiffs because such possession has not been
nor is it under claim of ownership, but a title held
in the name and on behalf of the beneficiaries,
some of whom are the plaintiffs in general. For this
reason the defense of prescription cannot be
enforced between the trustee and the
beneficiaries while the trust relations continue, as
was impliedly held in the case of the Government
of the Philippine Islands vs. Abadilla (46 Phil., 642.)
(Ibid., pp. 938-940.)
Strictly speaking there was no alteration in the
nature of the action then commenced by the
plaintiffs. They claimed indemnity for damages in
the amount of half a million pesos believing that
the registration of the real properties of
the mayorazgo in favor of the defendants and the
issuance of the corresponding certificates of title,
made the latter the exclusive owners thereof; but
this court held that a trust being involved, the
titles should be under stood as issued in favor of
all the co-proprietors, among them the plaintiffs,
and in view of this ruling the plaintiffs were
declared entitled, not to an indemnity, but to a
participation in one-fifth of the aforesaid
properties. From this it follows that, although the
plaintiffs were granted a relief different from that
they had asked for, the rights which they invoked
from the very beginning and upon which they
based the action which they began, were,
nevertheless, the same to wit, their rights as
relatives or descendants of the founder of
the mayorazgo. They erred in the choice of the
remedy to which they were entitled, but they did
not change the essential ground of the action. In
either case the right which they wanted to enforce
was the same, but it developed that the adequate

remedy was not the, one they asked for but that
granted to them by the court.
In their ninth assigned error the appellants
contend that the court erred in declaring null and
void as to one-half the sales of their participations
executed by the intervenors Mariano Arenas,
Estanislaoa Arenas, Julio Tuason, Severino Tuason,
Encarnacion Rojo, and Candelaria Rojo in favor of
the said defendants-appellants.
The referee in fact declared said sales null and void
as to one-half, either because the vendors were
the ones who received the revenue or because
they had immediate successors at the time the
Disentailing Statute took effect in the Islands. The
court sustained the referee.
Without going into an extended discussion, we
rule that the said intervenors-vendors cannot now
question the validity of the aforesaid sales because
their action has pre scribed and they are now in
estoppel by laches. All that we said in this
connection in the appeal of the Legardas may be
taken as reproduced herein. The most recent sale
was made in 1916 and the first complaint of
intervention questioning the validity of the sales
was filed in 1926, that is, after the lapse of more
than ten years. During all this time the defendants
were in the enjoyment of the said participations
without any protest or claim of any kind from any
of the vendors. The time that has elapsed is more
than that required for the prescription of the
action to annul the sales, and estops the
intervenors-vendors from questioning their
validity.
We find the error assigned tenable.
The tenth assigned error requires no discussion
because it was made conditionally, that is, in the
event that the preceding one is not well-founded
and is not sustained.
Various intervenors or their predecessors sold
their participations in the fifth of
the mayorazgo which came from the younger
children with succession as well as from those
without succession, favor of the defendants. The
referee last appointed was of the opinion that the
sales of the participations which came from the
younger children with succession, were valid, but
not those which came from the younger children
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 60
who died without succession. In its decision the
court disapproved this conclusion and held that all
the sales were valid. But in its order of April 8,
1931, in passing upon different motions of
reconsideration, it concurred in the opinion of the
referee and ruled that the sales of the
participations coming from the younger children
without succession were null and void because
undetermined rights were transmitted thereby.
We rule that the eleventh assigned error is well
founded and that the sales in question are as valid
as those made of the participations coming. from
the younger children with succession. And on this
point we repeat what we already said in the
appeal of the Legardas, in resolving a similar case,
that pursuant to the provisions of article 657 of the
Civil Code, successory rights are transmitted from
the death of the person leaving the hereditary
estate, where fore. it cannot be said that in the
aforementioned sales undetermined rights were
conveyed. It is true that on the dates of the sales,
the amount of the participations sold were not yet
determined, but doubtless it could be fixed and
reduced to figures through the appraisal and
liquidation provided for by the Disentailing
Statute.
The twelve and last assigned error states that the
court should have required the referee to file an
amended report pursuant to the order of April 8,
1931. The error, if any is no ground for either
modification or reversal. There is no doubt that
the referee should file his amended and final
report, but this may be prepared and submitted
for approval after the appeals have been disposed
of and the present decision has become final. We
find no merit in this assigned error.
Summarizing what has been said in connection
with this appeal we have:
1. That the first, second, third, fourth, fifth, sixth,
seventh, eight, tenth and twelfth assigned error
are without merit and must be as they are hereby
overruled;
2. That the sales executed by Mariano Arenas,
Estanislao Arenas, Julio Tuason, Severino Tuason,
Encarnacion Rojo and Candelaria Rojo in favor of
the defendants are valid in their entirety; thereby
sustaining the ninth assigned error; and

3. That the sales executed by certain intervenors
or their predecessors of their participations
coming from the younger children without
succession, in favor of the defendants, are valid;
thereby sustaining likewise the eleventh assigned
error.
JUDGMENT
In view of all the foregoing considerations, and
disposing finally of all the appeals interposed, it is
ordered:
In case G.R. No. 36811
1. That the appealed decision and order be
amended, in the sense that the sales executed by
Tomasa Tuason de Tobias, Luis Tuason, and Pedro
Tuason, in favor of the intervenors Legarda, are
valid, and that the participations sold thereby
should be adjudicated in favor of said purchasers;
2. That the appealed decision and order be
modified, in the sense that the sales executed in
favor of the intervenors Legarda of the
participations coming from the younger children
without succession, are valid, and, consequently,
said participations should be adjudicated in favor
of the said intervenors;
3. That the appealed decision and order be
modified, in the ant of Santos Luciano Tuason,
should be adjudicated in favor of the intervenors-
appellants, and
4. That the appealed decision and order, in so far
as they have been affected by the appeal
interposed but have not been modified, are hereby
affirmed;
In case G.R. No. 36827
1. That the aforesaid appealed decision, in so far as
it has been affected by the appeal interposed by
the intervenors-appellants in this case, is hereby
affirmed;
In case G.R. No. 36840
1. That the decision of the court is hereby affirmed
in so far as it has been affected by the appeal
interposed in this case by the intervenors-
appellants Estanislaoa Arenas and others;
In case G.R. No. 36872
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 61
1. That the appealed decision and order are hereby
amended, in the sense that the sales executed by
Mariano Arenas, Estanislaoa Arenas, Julio Tuason,
Severino Tuason, Encarnacion Rojo, and Candelaria
Rojo, in favor of the defendants-appellants, are
valid in their entirety, and consequently. the
participations transferred thereby should be
adjudicated to the said purchasers.
2. That the said appealed decision and order be
amended in the sense that the sales executed in
favor of the defend ants-appellants of the
participations coming from the younger children
without succession, are valid in their entirety, and
therefore, said participations should be
adjudicated in favor of said defendants-appellants;
and
3. That the said decision and order in so far as they
have been affected by the appeal interposed in
this case but have not been modified. are hereby
affirmed.
It is likewise ordered that the court of origin take
the necessary steps looking to the adjudication
and distribution among the parties entitled
thereto of their respective participations, to the
end that this mayorazgo case may be definitely
closed.
Without costs in this instance. So ordered.
Avancea, C.J., Malcolm, and Villa-Real, JJ.,
concur.
Separate Opinions
STREET, J., concurring:
In view of the fact that our order granting a new
trial, reported in Baretto vs. Tuason (50 Phil., 888,
966), is considered by the court to be so limited as
to prevent further consideration of the
fundamentals, I deem it unnecessary to repeat the
consideration which led me to dissent in part from
the conclusions reached at the former hearing, and
I therefore now concur.
HULL, J., with whom concur GODDARD and
DIAZ, JJ., concurring:

I am constrained to concur in the result, feeling
bound by the law of the case as it exist in this
jurisdiction. (See Compagnie Franco-
Indochinoise vs. Deutsch-Australische Dampschiffs
Gesllschaft, 39 Phil., 474, and Zarate vs. Director of
Lands, 39 Phil., 747.) If I were free to vote on the
merits, I would deny all relief to plaintiffs.
VICKERS, J., concurring:
In the above entitled cases I voted to affirm the
decisions of the lower court, with the
modifications proposed by theponente, and I
hereby authorize the Chief Justice or the Justice
acting in his place to certify that I voted in said
cases as hereinabove stated.
I certify that Justice J.C. Vickers took part in the
consideration of the above enumerated cases, and
voted to affirm the appealed decision, as modified
in the prevailing opinion. AVANCEA, C.J.
ABAD SANTOS, J., dissenting:
I regret that I am unable to agree with the
prevailing opinion in this case which is not only
well-written but manifests conscientious and
painstaking labor. In my judgment, however, it
suffers from one vital defect which is that of
having assumed as correct and binding the rulings
laid down and conclusions reached in Barretto vs.
Tuason (50 Phil., 888.) I am of the opinion (1) that
these rulings and conclusions are fundamentally
erroneous, and (2) that this court is not bound by
them.
1. Granting that, as held in the case cited,
the mayorazgo involved in this case as a family
trust, the trust ceased on March 1, 1864, when the
Disentailing Law of October 11, 1820, became
effective in the Philippines. As declared by this
court in that case on page 936: "But the entail
could not and cannot continue perpetually. Its
abolition was decreed by the statute as of the 1st
day of March, 1864. Its perpetual survival would
contrary, not only to the Disentailing Law of
October 11, 1820, but also the Civil Code in force
which, under articles 781 and 785, paragraph 2,
positively prohibits perpetual entails." After March
1, 1864, the trust, as such, could not legally exist,
irrespective of the subsequent conduct of the
parties concerned.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 62
The effect of the effect of the Disentailing Law was
to vest in the cestui or beneficiary both the
beneficial and legal ownership of the trust
property, subject only to the conditions prescribed
under articles 2 and 3 of the Law as to the right of
alienation. This gave the cestui his heirs or assigns,
the right to possession of the trust property. The
exercise of this right was subject to the law on the
prescription of actions for the enforcement of
rights of such nature. The record shows that the
original action in these cases was not brought until
August 2, 1923, long after the statute of limitations
had run against it.
Even granting that after the termination of the
family trust, a resulting trust arose by reason of
the subsequent conduct of the parties concerned,
it appears from the stipulation of facts that such a
resulting trust was repudiated ten years prior to
the filing of the original complaint in these cases;
and, by the prevailing cases, the general statutes
of limitations are applicable to resulting trusts. (39
Cyc., 606.) "It is generally held that the rule that
the statute of limitations does not run in favor of a
trustee against the cestui que trust applies only to
express trusts, and that implied or constructive
trusts are within the operation of the statute, so
that a suit to impose and enforce such a trust may
become barred. Thus `whenever a person takes
possession of property in his own and is afterward
by matter of evidence or by construction of law
changed into a trustee', the statute may be
pleaded. This is true a fortioriwhere plaintiff seeks
his remedy in a court of law having no equity
jurisdiction. In the case of a constructive or implied
trust, except where the trust is imposed on the
ground of fraud which is not immediately
discovered, or there has been a fraudulent
concealment of the cause of action, the statute
begins to run in favor of the party chargeable as
trustee from the time when the wrong is done by
which he becomes thus chargeable, or the time
when the beneficiary can assert his rights; not
from the time when demand is made on the
trustee, or the trust is repudiated by him, for no
repudiation of an implied or constructive trust is
ordinarily necessary to mature a right of action
and set the statute in motion." (20 Cyc., 1155-
1158.)
2. This court is not bound by the rules laid down
and conclusions reached in Barretto vs. Tuason,

supra. In this connection, it should be observed at
the outset that nothing has been adjudicated in
that case. It is true that, at first, an adjudication
was made therein, but on motion for a
reconsideration it was ordered:
xxx xxx xxx
(b) That the dispositive part of our decision in this
cause be set aside.
(c) That the record in the present case, together
with the petitions of intervention mentioned, be
returned to the Court of First Instance of Manila in
order that the new parties may intervene in this
cause and prove their alleged rights, and that the
original plaintiffs may, if they so desire, amend
their complaint.
xxx xxx xxx
(e) That said Court of First Instance proceed to try
this cause and render judgment as to the amount
to which the original parties and those who may
intervene may be entitled as their participation in
the fifth of the properties of this mayorazgo.
xxx xxx xxx
It seems clear, therefore, that the case should not
as it in fact does not, a precedent.
Moreover, it should be borne in mind that the
common law doctrine of stare decisis has not
strictly followed in this jurisdiction. What has been
followed here is the American theory of precedent
which recognizes that "Case Law is not wholly
bound by the rules of past generations. It is a
`myth of the law', that stare decisis is impregnable
or is anything more than a salutary maxim to
promote justice. Although `certainty is the very
essence of the law', the law may be changed by
the courts by reversing or modifying a rule when
the rule has been demonstrated to be erroneous
either through failure of adequate presentation of
proper consideration, or consideration out of due
time of the earlier case, or when through changed
conditions it has become obviously harmful or
detrimental to society.' " (Pound, "Some Recent
Phases of the Evolution of Case Law", Yale Law
Journal [1922], vol. XXXI, pp. 361, 363.)
In Hertz vs. Woodman (218 U. S., 205, 212; 30 Sup.
Ct., 621, 622 [1910]), the Supreme Court of the
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 63
United States, through Justice Lurton said: "The
Circuit Court of Appeals was obviously not bound
to follow its own prior decision. The rule of stare
decisis, though one tending to consistency and
uniformity of decision, is not flexible. Whether it
shall be followed or departed from is a question
entirely within the discretion of the court, which is
again called upon to consider a question once
decided."
And in Adams Exp. Co. vs. Beckwith (100 Ohio St.,
348, 351, 352; 126 N. E., 300, 301, [1919], the
Supreme Court of Ohio said: "A decided case is
worth as much as it weighs in reason and
righteousness, and no more. It is not enough to say
`thus saith the court.' It must prove its right to
control in any given situation by the degree in
which its supports the rights of a party violated
and serves the causes of justice as to all parties
concerned."
The present tendency of American decisions is
strongly away from the strict English doctrine
of stare decisis, and towards the civilian theory of
precedents. (Goodhart, Essays in Jurisprudence
and the Common Law, pp. 50, 51, 65.) The civilian
theory, as exemplified by the French practice, has
been stated by Prof. Lambert of the University of
Lyons in an article published in the Yale Law
Journal: "In France, the judicial precedent does
not, ipso facto, bind either the tribunals which
established it nor the lower courts; and the Court
of Cassation itself retains the right to go back on its
own decisions. The courts of appeal may oppose a
doctrine proclaimed by the Court of Cassation, and
this opposition has sometimes led to a change of
opinion on the part of the higher court. The
practice of the courts does not become a source of
the law until it is definitely fixed by the repetition
of precedents which are in agreement on a single
point." ("The Case Method in Canada and the
Possibilities of its Adoptation to the Civil Law",
Yale Law Journal [1929], vol. XXXIX, pp. 1, 14.)
In a recent case, speaking of the doctrine of stare
decisis, this court said:
Is the court with new membership compelled to
follow blindly the doctrine of the Velasco case?
The rule of stare decisis is entitled to respect.
Stability in the law, particularly in the business
field, is desirable. But idolatrous reverence for

precedent, simply as precedent, no longer rules.
More important than anything else is that the
court should be right. And particularly it is not wise
to subordinate legal reason to case law and by so
doing perpetuate error when it is brought to mind
that the views now expressed conform in principle
to the original decision and that since the first
decision to the contrary was sent forth there has
existed a respectable opinion of non-conformity in
the court. Indeed, on at least one occasion has the
court broken away from the revamped doctrine,
while even in the last case in point the court was
evenly divided as it was possible to be and still
reach a decision. (Philippine Trust Company and
Smith, Bell & Company vs. Mitchell, p. 30, ante.)
In conclusion, I believe that whatever rights of
action the plaintiffs in these cases might have had,
have either been bared by laches or prescribed.
Hence they should take nothing by their actions.
BUTTE, J., dissenting:
I am of the opinion that the assignments of error
of the defendants-appellants numbered 1, 2, 3, 4,
5, 6 and 8 should be sustained and I, therefore,
dissent.
A Torrens title was issued to the defendants-
appellants in 1915 under the provisions of the
Land Registration Act (Act No. 496). This court has
repeatedly held that such titles are final,
irrevocable and incontestable.
From 1878, when Doa Teresa de la Paz succeeded
to the estate of her child, Jose Victoriano Tuason,
she held possession as owner until her death in
1890 when the property passed to the defendants
all of whom are direct descendants of Doa Teresa
de la Paz, From 1878 to 1923 when the present
action was commenced that is for forty-five
years, the defendants and their predecessors in
title held possession as owners. They have,
therefore, acquired a title by prescription. (Articles
446, 447, 1959 and 1960, Civil Code. See
also Kineald vs. Cabututan, 35 Phil., 383, 406.)
The sixth clause of the instrument creating this
estate tail (mayorazgo) dated February 25, 1794,
did not create a family trust. Nor is there any
evidence showing that the appellees or their
predecessors in title come within the language of
the sixth clause of that instrument which, at most,
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 64
might be construed to be precatory trust. Nor was
that precatory trust indeterminable. The possible
beneficiaries thereof no longer existed in March 1,
1864 when the Spanish Statute of Disentailment
was extended to the Philippine Islands. It is to be
noted that article 4 of the Statute of Disentailment
provided for the termination of family trust.
The Statute of Disentailment, effective in the
Philippines on March 1, 1864, abolished estates
tail and provided that all properties entailed are
restored to the class of absolutely free properties.
The possessors of entailed estates were
empowered at once to freely dispose of one-half
of the entailed property, the other half to pass to
the immediate successor to the title, who was
empowered to dispose of it freely as owner. Under
these provisions, after the death of Jose Tuason,
his heir, on January 25, 1879, Teresa de la Paz took
the title in fee simple to all the properties involved
in this entailed estate. The plaintiffs, who at this
late date seek to impress said title with a trust, are
guilty of extreme laches.
The Torrens title issued to the defendants in 1915
should be sustained.
CASE NO. 9
G.R. No. L-48372 July 24, 1942
GENEROSA TEVES DE JAKOSALEM, plaintiff-
appellant,
vs.
NICOLASA RAFOLS, ET ALS., defendants-appellees.
Tomas Alonso and Silvano Jakosalem for
appellant.
Nicolasa Rafols for appellees.
MORAN, J.:
The land in question described in the appealed in
the decision originally belonged to Juan Melgar.
The latter died at the judicial administration of his
estate was commenced in 1915 and came to a
close on December 2, 1924, only. During the
pendency of the said administration, that is, on
July 5, 1917, Susana Melgar, daughter of the
deceased Juan Melgar, sold the land with the right

of repurchase to Pedro Cui, subject to the
stipulation that during the period for the
repurchase she would continue in possession of
the land as lessee of the purchaser. On December
12, 1920, the partition of the estate left by the
deceased Juan Melgar was made, and the land in
question was adjudicated to Susana Melgar. In
1921, she conveyed, in payment of professional
fees, one-half of the land in favor of the
defendant-appellee Nicolasa Rafols, who, entered
upon the portion thus conveyed and has been in
possession thereof up to the present. On July 23,
1921, Pedro Cui brought an action to recover said
half of the land from Nicolas Rafols and the other
half from the other defendants, and while that
case was pending, or about August 4, 1925, Pedro
Cui donated the whole land in question to
Generosa Teves, the herein plaintiff-appellant.
After trial, the lower court rendered a decision
absolving Nicolas Rafols as to the one-half of the
land conveyed to him by Susana Melgar, and
declaring the plaintiff owner of the other half but
express acknowlegment of the other defendants.
The plaintiff appealed from that part of the
judgment which is favorable to Nicolas Rafols.
The lower court absolved Nicolas Rafols upon the
theory that Susana Melgar could not have
anything to Pedro Cui because the a land was then
in custodia legis, that is, under judicial
administration. This is error. That the land could
not ordinarily be levied upon while in custodia
legis, does not mean that one of the heirs may not
sell the right, interest or participation which he has
or might have in the lands under administration.
The ordinary execution of property in custodia
legis is prohibited in order to avoid interference
with the possession by the court. But the sale
made by an heir of his share in an inheritance,
subject to the result of the pending administration,
in no wise stands in the way of such
administration.
Article 440 of the Civil Code provides that "the
possession of hereditary property is deemed to be
transmitted to the heir without interruption from
the instant of the death of the decedent, in case
the inheritance be accepted." And Manresa with
reason states upon the death of a person, each of
his heirs "becomes the undivided owner of the
whole estate left with respect to the part or
portion which might be adjudicated to him, a
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 65
community of ownership being thus formed
among the coowners of the estate while it remains
undivided." (3 Manresa 357; Alcala vs. Alcala, 35
Phil. 679.) And according to article 399 of the Civil
Code, every part owner may assign or mortgage
his part in the common property, and the effect of
such assignment or mortgage shall be limited to
the portion which may be alloted him in the
partition upon the dissolution of the community.
Hence, in the case of Ramirez vs, Bautista, 14 Phil.
528, where some of the heirs, without the
concurrence of the others, sold a property left by
their deceased father, this Court, speaking thru its
then Chief Justice Cayetano Arellano, said that the
sale was valid, but that effect thereof was limited
to the share which may be allotted to the vendors
upon the partition of the estate.
It results therefore that the sale made by Susana
Melgar in favor of Pedro Cui was valid, but it
would be effective only as to the portion to be
adjudicated to the vendor upon the partition of
the property left by her deceased father Juan
Melgar. And as on December 12, 1920, upon the
partition of said property, the land in question was
adjudicated to Susana Melgar, the sale of the
whole land which the latter made in favor of Pedro
Cui was entirely confirmed.
Upon the confirmation of the sale of December 12,
1920 in favor of Pedro Cui, the conveyance by
Susana Melgar in favor of Nicolasa Rafols in 1921
could no longer be done. And even in the case of a
double sale, where neither of the purchasers has
registered the sale, the first in possession namely,
Pedro Cui, should be referred. When the sale made
in the latter's favor was confirmed on December
12, 1920, Susana Melgar was in possession of the
land as lessee, and this possession should be
considered as that of Pedro Cui. The possession of
Nicolas Rafols commenced in 1921 only,
wherefore, it is subsequent to that of Pedro Cui.
Nicolasa Rafols may not allege prescription of
action, for Pedro Cui filed the first complaint in
1921, or the year following the confirmation of the
sale in his favor. And as Nicolas Rafols deprived
Pedro Cui of the possession and the enjoyment of
one-half of the land since 1921 to the present, it is
only just that he should pay an indemnity therefor.
Six per cent of P1,500, which is the price of one-

half of the land, may be considered as the
reasonable amount of this indemnity.
Wherefore, the appealed decision is reversed, and
Nicolas Rafols is sentenced to deliver to the
plaintiff Generosa Teves de Jakosalem, one-half of
the land conveyed to him by Susana Melgar, and
to pay by way of damages the sum of P90 a year
from the filing of the complaint that is, from July
23, 1921, until the delivery of the land, with the
cost of both instances against him. So ordered.
CASE NO. 10
G.R. No. L-5064 February 27, 1953
BIENVENIDO A. IBARLE, plaintiff-appellant,
vs.
ESPERANZA M. PO, defendant-appellant.
Quirico del Mar for appellant.
Daniel P. Tumulak and Conchita F. Miel appellee.
TUASON, J.:
This action commenced in the Court of First
Instance of Cebu to annul a deed of sale conveying
to the defendant, in consideration of P1,700, one
undivided half of a parcel of land which previously
had been sold, along with the other half, by the
same vendor to the plaintiff's grantors. judgment
was against the plaintiff.
The case was submitted for decision upon an
agreed statement of facts, the pertinent parts of
which are thus summarized in the appealed
decision:
1st. That Leonard j. Winstanley and Catalina
Navarro were husband and wife, the former
having died on June 6, 1946 leaving heir the
surviving spouse and some minor children;
2nd. hat upon the death of L.J. Winstanley, he
left a parcel of land described under Transfer
Certificate of title No. 2391 of the Registry of
Deeds of the Province of Cebu;
3rd. That the above mentioned property was a
conjugal property;
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 66
4th. That on April 15, 1946, the surviving spouse
Catalina Navarro Vda. de Winstanley sold the
entire parcel of land to the spouses Maria Canoy,
alleging among other things, that she needed
money for the support of her children;
5th. That on May 24, 1947, the spouses Maria
Canoy and Roberto Canoy sold the same parcel of
land to the plaintiff in this case named Bienvenido
A. Ebarle;
6th. That the two deeds of sale referred to
above were not registered and have never been
registered up to the date;
7th. That on January 17, 1948 surviving spouse
Catalina Navarro Vda. de Winstanley, after her
appointment as guardian of her children by this
court (Special proceeding no. 212-R) sold one-half
of the land mentioned above to Esperanza M. Po,
defendant in the instant case, which portion
belongs to the children of the above named
spouses.
As stated by the trial Judge, the sole question for
determination is the validity of the sale to
Esperanza M. Po, the last purchaser. This question
in turn depends upon the validity of the prior ale
to Maria Canoy and Roberto Canoy.
Article 657 of the old Civil Code provides: "The
rights to the succession of a person are
transmitted from the moment of his death." in a
slightly different language, this article is
incorporated in the new Civil Code as article 777.
Manresa, commending on article 657 of the Civil
Code of Spain, says:
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. It is immaterial whether a short or long
period of time lapses between the death of the
predecessor and the entry into possession of the
property of the inheritance because the right is
always deemed to be retroactive from the
moment of death. (5 Manresa, 317.)
The above provision and comment make it clear
that when Catalina Navarro Vda. de Winstanley
sold the entire parcel to the Canoy spouses, one-
half of it already belonged to the seller's children.
No formal or judicial declaration being needed to

confirm the children's title, it follows that the first
sale was null and void in so far as it included the
children's share.
On the other hand, the sale to the defendant
having been made by authority of the competent
court was undeniably legal and effective. The fact
that it has not been recorded is of no
consequence. If registration were necessary, still
the non-registration would not avail the plaintiff
because it was due to no other cause than his own
opposition.
The decision will be affirmed subject to the
reservation, made in said decision, of the right of
the plaintitff and/or the Canoy spouses to bring
such action against Catalina Navarro Vda. de
Winstanley as may be appropriate for such
damages as they may have incurred by reason of
the voiding of the sale in their favor.
Paras, C.J., Feria, Pablo, Bengzon, Padilla,
Montemayor, Reyes, Jugo, Bautista Angelo and
Labrador, JJ., concur.
CASE NO. 11
G.R. No. L-43082 June 18, 1937
PABLO LORENZO, as trustee of the estate of
Thomas Hanley, deceased, plaintiff-appellant,
vs.
JUAN POSADAS, JR., Collector of Internal
Revenue, defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-
appellant.
Office of the Solicitor-General Hilado for
defendant-appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in
his capacity as trustee of the estate of Thomas
Hanley, deceased, brought this action in the Court
of First Instance of Zamboanga against the
defendant, Juan Posadas, Jr., then the Collector of
Internal Revenue, for the refund of the amount of
P2,052.74, paid by the plaintiff as inheritance tax
on the estate of the deceased, and for the
collection of interst thereon at the rate of 6 per
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 67
cent per annum, computed from September 15,
1932, the date when the aforesaid tax was [paid
under protest. The defendant set up a
counterclaim for P1,191.27 alleged to be interest
due on the tax in question and which was not
included in the original assessment. From the
decision of the Court of First Instance of
Zamboanga dismissing both the plaintiff's
complaint and the defendant's counterclaim, both
parties appealed to this court.
It appears that on May 27, 1922, one Thomas
Hanley died in Zamboanga, Zamboanga, leaving a
will (Exhibit 5) and considerable amount of real
and personal properties. On june 14, 1922,
proceedings for the probate of his will and the
settlement and distribution of his estate were
begun in the Court of First Instance of Zamboanga.
The will was admitted to probate. Said will
provides, among other things, as follows:
4. I direct that any money left by me be given to
my nephew Matthew Hanley.
5. I direct that all real estate owned by me at the
time of my death be not sold or otherwise
disposed of for a period of ten (10) years after my
death, and that the same be handled and managed
by the executors, and proceeds thereof to be given
to my nephew, Matthew Hanley, at Castlemore,
Ballaghaderine, County of Rosecommon, Ireland,
and that he be directed that the same be used only
for the education of my brother's children and
their descendants.
6. I direct that ten (10) years after my death my
property be given to the above mentioned
Matthew Hanley to be disposed of in the way he
thinks most advantageous.
xxx xxx xxx
8. I state at this time I have one brother living,
named Malachi Hanley, and that my nephew,
Matthew Hanley, is a son of my said brother,
Malachi Hanley.
The Court of First Instance of Zamboanga
considered it proper for the best interests of ther
estate to appoint a trustee to administer the real
properties which, under the will, were to pass to
Matthew Hanley ten years after the two executors
named in the will, was, on March 8, 1924,

appointed trustee. Moore took his oath of office
and gave bond on March 10, 1924. He acted as
trustee until February 29, 1932, when he resigned
and the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee,
the defendant Collector of Internal Revenue,
alleging that the estate left by the deceased at the
time of his death consisted of realty valued at
P27,920 and personalty valued at P1,465, and
allowing a deduction of P480.81, assessed against
the estate an inheritance tax in the amount of
P1,434.24 which, together with the penalties for
deliquency in payment consisting of a 1 per cent
monthly interest from July 1, 1931 to the date of
payment and a surcharge of 25 per cent on the tax,
amounted to P2,052.74. On March 15, 1932, the
defendant filed a motion in the testamentary
proceedings pending before the Court of First
Instance of Zamboanga (Special proceedings No.
302) praying that the trustee, plaintiff herein, be
ordered to pay to the Government the said sum of
P2,052.74. The motion was granted. On September
15, 1932, the plaintiff paid said amount under
protest, notifying the defendant at the same time
that unless the amount was promptly refunded
suit would be brought for its recovery. The
defendant overruled the plaintiff's protest and
refused to refund the said amount hausted,
plaintiff went to court with the result herein above
indicated.
In his appeal, plaintiff contends that the lower
court erred:
I. In holding that the real property of Thomas
Hanley, deceased, passed to his instituted heir,
Matthew Hanley, from the moment of the death of
the former, and that from the time, the latter
became the owner thereof.
II. In holding, in effect, that there was deliquency
in the payment of inheritance tax due on the
estate of said deceased.
III. In holding that the inheritance tax in question
be based upon the value of the estate upon the
death of the testator, and not, as it should have
been held, upon the value thereof at the
expiration of the period of ten years after which,
according to the testator's will, the property could
be and was to be delivered to the instituted heir.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 68
IV. In not allowing as lawful deductions, in the
determination of the net amount of the estate
subject to said tax, the amounts allowed by the
court as compensation to the "trustees" and paid
to them from the decedent's estate.
V. In not rendering judgment in favor of the
plaintiff and in denying his motion for new trial.
The defendant-appellant contradicts the theories
of the plaintiff and assigns the following error
besides:
The lower court erred in not ordering the plaintiff
to pay to the defendant the sum of P1,191.27,
representing part of the interest at the rate of 1
per cent per month from April 10, 1924, to June 30,
1931, which the plaintiff had failed to pay on the
inheritance tax assessed by the defendant against
the estate of Thomas Hanley.
The following are the principal questions to be
decided by this court in this appeal: (a) When does
the inheritance tax accrue and when must it be
satisfied? (b) Should the inheritance tax be
computed on the basis of the value of the estate at
the time of the testator's death, or on its value ten
years later? (c) In determining the net value of the
estate subject to tax, is it proper to deduct the
compensation due to trustees? (d) What law
governs the case at bar? Should the provisions of
Act No. 3606 favorable to the tax-payer be given
retroactive effect? (e) Has there been deliquency
in the payment of the inheritance tax? If so, should
the additional interest claimed by the defendant in
his appeal be paid by the estate? Other points of
incidental importance, raised by the parties in
their briefs, will be touched upon in the course of
this opinion.
(a) The accrual of the inheritance tax is distinct
from the obligation to pay the same. Section 1536
as amended, of the Administrative Code, imposes
the tax upon "every transmission by virtue of
inheritance, devise, bequest, gift mortis causa, or
advance in anticipation of inheritance,devise, or
bequest." The tax therefore is upon transmission
or the transfer or devolution of property of a
decedent, made effective by his death. (61 C. J., p.
1592.) It is in reality an excise or privilege tax
imposed on the right to succeed to, receive, or
take property by or under a will or the intestacy
law, or deed, grant, or gift to become operative at

or after death. Acording to article 657 of the Civil
Code, "the rights to the succession of a person are
transmitted from the moment of his death." "In
other words", said Arellano, C. J., ". . . the heirs
succeed immediately to all of the property of the
deceased ancestor. The property belongs to the
heirs at the moment of the death of the ancestor
as completely as if the ancestor had executed and
delivered to them a deed for the same before his
death." (Bondad vs. Bondad, 34 Phil., 232. See
also, Mijares vs. Nery, 3 Phil., 195; Suilong & Co.,
vs. Chio-Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12
Phil., 391; Innocencio vs. Gat-Pandan, 14 Phil., 491;
Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras
Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19
Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario vs.
Osario & Yuchausti Steamship Co., 41 Phil., 531;
Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First
Instance of Capiz, 51 Phil., 396; Baun vs. Heirs of
Baun, 53 Phil., 654.) Plaintiff, however, asserts that
while article 657 of the Civil Code is applicable to
testate as well as intestate succession, it operates
only in so far as forced heirs are concerned. But
the language of article 657 of the Civil Code is
broad and makes no distinction between different
classes of heirs. That article does not speak of
forced heirs; it does not even use the word "heir".
It speaks of the rights of succession and the
transmission thereof from the moment of death.
The provision of section 625 of the Code of Civil
Procedure regarding the authentication and
probate of a will as a necessary condition to effect
transmission of property does not affect the
general rule laid down in article 657 of the Civil
Code. The authentication of a will implies its due
execution but once probated and allowed the
transmission is effective as of the death of the
testator in accordance with article 657 of the Civil
Code. Whatever may be the time when actual
transmission of the inheritance takes place,
succession takes place in any event at the moment
of the decedent's death. The time when the heirs
legally succeed to the inheritance may differ from
the time when the heirs actually receive such
inheritance. "Poco importa", says Manresa
commenting on article 657 of the Civil Code, "que
desde el falleimiento del causante, hasta que el
heredero o legatario entre en posesion de los
bienes de la herencia o del legado, transcurra
mucho o poco tiempo, pues la adquisicion ha de
retrotraerse al momento de la muerte, y asi lo
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 69
ordena el articulo 989, que debe considerarse
como complemento del presente." (5 Manresa,
305; see also, art. 440, par. 1, Civil Code.) Thomas
Hanley having died on May 27, 1922, the
inheritance tax accrued as of the date.
From the fact, however, that Thomas Hanley died
on May 27, 1922, it does not follow that the
obligation to pay the tax arose as of the date. The
time for the payment on inheritance tax is clearly
fixed by section 1544 of the Revised
Administrative Code as amended by Act No. 3031,
in relation to section 1543 of the same Code. The
two sections follow:
SEC. 1543. Exemption of certain acquisitions and
transmissions. The following shall not be taxed:
(a) The merger of the usufruct in the owner of the
naked title.
(b) The transmission or delivery of the inheritance
or legacy by the fiduciary heir or legatee to the
trustees.
(c) The transmission from the first heir, legatee, or
donee in favor of another beneficiary, in
accordance with the desire of the predecessor.
In the last two cases, if the scale of taxation
appropriate to the new beneficiary is greater than
that paid by the first, the former must pay the
difference.
SEC. 1544. When tax to be paid. The tax fixed in
this article shall be paid:
(a) In the second and third cases of the next
preceding section, before entrance into possession
of the property.
(b) In other cases, within the six months
subsequent to the death of the predecessor; but if
judicial testamentary or intestate proceedings
shall be instituted prior to the expiration of said
period, the payment shall be made by the executor
or administrator before delivering to each
beneficiary his share.
If the tax is not paid within the time hereinbefore
prescribed, interest at the rate of twelve per
centum per annum shall be added as part of the
tax; and to the tax and interest due and unpaid
within ten days after the date of notice and

demand thereof by the collector, there shall be
further added a surcharge of twenty-five per
centum.
A certified of all letters testamentary or of
admisitration shall be furnished the Collector of
Internal Revenue by the Clerk of Court within
thirty days after their issuance.
It should be observed in passing that the word
"trustee", appearing in subsection (b) of section
1543, should read "fideicommissary" or "cestui
que trust". There was an obvious mistake in
translation from the Spanish to the English version.
The instant case does fall under subsection (a), but
under subsection (b), of section 1544 above-
quoted, as there is here no fiduciary heirs, first
heirs, legatee or donee. Under the subsection, the
tax should have been paid before the delivery of
the properties in question to P. J. M. Moore as
trustee on March 10, 1924.
(b) The plaintiff contends that the estate of
Thomas Hanley, in so far as the real properties are
concerned, did not and could not legally pass to
the instituted heir, Matthew Hanley, until after the
expiration of ten years from the death of the
testator on May 27, 1922 and, that the inheritance
tax should be based on the value of the estate in
1932, or ten years after the testator's death. The
plaintiff introduced evidence tending to show that
in 1932 the real properties in question had a
reasonable value of only P5,787. This amount
added to the value of the personal property left by
the deceased, which the plaintiff admits is P1,465,
would generate an inheritance tax which,
excluding deductions, interest and surcharge,
would amount only to about P169.52.
If death is the generating source from which the
power of the estate to impose inheritance taxes
takes its being and if, upon the death of the
decedent, succession takes place and the right of
the estate to tax vests instantly, the tax should be
measured by the vlaue of the estate as it stood at
the time of the decedent's death, regardless of any
subsequent contingency value of any subsequent
increase or decrease in value. (61 C. J., pp. 1692,
1693; 26 R. C. L., p. 232; Blakemore and Bancroft,
Inheritance Taxes, p. 137. See also Knowlton vs.
Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44 Law.
ed., 969.) "The right of the state to an inheritance
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 70
tax accrues at the moment of death, and hence is
ordinarily measured as to any beneficiary by the
value at that time of such property as passes to
him. Subsequent appreciation or depriciation is
immaterial." (Ross, Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the
rule in Cyclopedia of Law of and Procedure (vol.
37, pp. 1574, 1575) that, in the case of contingent
remainders, taxation is postponed until the estate
vests in possession or the contingency is settled.
This rule was formerly followed in New York and
has been adopted in Illinois, Minnesota,
Massachusetts, Ohio, Pennsylvania and Wisconsin.
This rule, horever, is by no means entirely
satisfactory either to the estate or to those
interested in the property (26 R. C. L., p. 231.).
Realizing, perhaps, the defects of its anterior
system, we find upon examination of cases and
authorities that New York has varied and now
requires the immediate appraisal of the postponed
estate at its clear market value and the payment
forthwith of the tax on its out of the corpus of the
estate transferred. (In re Vanderbilt, 172 N. Y., 69;
69 N. E., 782; In re Huber, 86 N. Y. App. Div., 458;
83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501;
72 N. Y., 519; Estate of Brez, 172 N. Y., 609; 64 N.
E., 958; Estate of Post, 85 App. Div., 611; 82 N. Y.
Supp., 1079. Vide also, Saltoun vs. Lord Advocate,
1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng.
Rul. Cas., 888.) California adheres to this new rule
(Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other
jurisdictions, we hold that a transmission by
inheritance is taxable at the time of the
predecessor's death, notwithstanding the
postponement of the actual possession or
enjoyment of the estate by the beneficiary, and
the tax measured by the value of the property
transmitted at that time regardless of its
appreciation or depreciation.
(c) Certain items are required by law to be
deducted from the appraised gross in arriving at
the net value of the estate on which the
inheritance tax is to be computed (sec. 1539,
Revised Administrative Code). In the case at bar,
the defendant and the trial court allowed a
deduction of only P480.81. This sum represents
the expenses and disbursements of the executors
until March 10, 1924, among which were their fees

and the proven debts of the deceased. The plaintiff
contends that the compensation and fees of the
trustees, which aggregate P1,187.28 (Exhibits C,
AA, EE, PP, HH, JJ, LL, NN, OO), should also be
deducted under section 1539 of the Revised
Administrative Code which provides, in part, as
follows: "In order to determine the net sum which
must bear the tax, when an inheritance is
concerned, there shall be deducted, in case of a
resident, . . . the judicial expenses of the
testamentary or intestate proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair
compensation for his services (Barney vs.
Saunders, 16 How., 535; 14 Law. ed., 1047). But
from this it does not follow that the compensation
due him may lawfully be deducted in arriving at
the net value of the estate subject to tax. There is
no statute in the Philippines which requires
trustees' commissions to be deducted in
determining the net value of the estate subject to
inheritance tax (61 C. J., p. 1705). Furthermore,
though a testamentary trust has been created, it
does not appear that the testator intended that
the duties of his executors and trustees should be
separated. (Ibid.; In re Vanneck's Estate, 161 N. Y.
Supp., 893; 175 App. Div., 363; In re Collard's
Estate, 161 N. Y. Supp., 455.) On the contrary, in
paragraph 5 of his will, the testator expressed the
desire that his real estate be handled and
managed by his executors until the expiration of
the period of ten years therein provided. Judicial
expenses are expenses of administration (61 C. J.,
p. 1705) but, in State vs. Hennepin County Probate
Court (112 N. W., 878; 101 Minn., 485), it was said:
". . . The compensation of a trustee, earned, not in
the administration of the estate, but in the
management thereof for the benefit of the
legatees or devises, does not come properly within
the class or reason for exempting administration
expenses. . . . Service rendered in that behalf have
no reference to closing the estate for the purpose
of a distribution thereof to those entitled to it, and
are not required or essential to the perfection of
the rights of the heirs or legatees. . . . Trusts . . . of
the character of that here before the court, are
created for the the benefit of those to whom the
property ultimately passes, are of voluntary
creation, and intended for the preservation of the
estate. No sound reason is given to support the
contention that such expenses should be taken
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 71
into consideration in fixing the value of the estate
for the purpose of this tax."
(d) The defendant levied and assessed the
inheritance tax due from the estate of Thomas
Hanley under the provisions of section 1544 of the
Revised Administrative Code, as amended by
section 3 of Act No. 3606. But Act No. 3606 went
into effect on January 1, 1930. It, therefore, was
not the law in force when the testator died on May
27, 1922. The law at the time was section 1544
above-mentioned, as amended by Act No. 3031,
which took effect on March 9, 1922.
It is well-settled that inheritance taxation is
governed by the statute in force at the time of the
death of the decedent (26 R. C. L., p. 206; 4 Cooley
on Taxation, 4th ed., p. 3461). The taxpayer can
not foresee and ought not to be required to guess
the outcome of pending measures. Of course, a tax
statute may be made retroactive in its operation.
Liability for taxes under retroactive legislation has
been "one of the incidents of social life." (Seattle
vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup.
Ct. Rep., 44.) But legislative intent that a tax
statute should operate retroactively should be
perfectly clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep.,
491; Smietanka vs. First Trust & Savings Bank, 257
U. S., 602; Stockdale vs. Insurance Co., 20 Wall.,
323; Lunch vs. Turrish, 247 U. S., 221.) "A statute
should be considered as prospective in its
operation, whether it enacts, amends, or repeals
an inheritance tax, unless the language of the
statute clearly demands or expresses that it shall
have a retroactive effect, . . . ." (61 C. J., P. 1602.)
Though the last paragraph of section 5 of
Regulations No. 65 of the Department of Finance
makes section 3 of Act No. 3606, amending section
1544 of the Revised Administrative Code,
applicable to all estates the inheritance taxes due
from which have not been paid, Act No. 3606 itself
contains no provisions indicating legislative intent
to give it retroactive effect. No such effect can
begiven the statute by this court.
The defendant Collector of Internal Revenue
maintains, however, that certain provisions of Act
No. 3606 are more favorable to the taxpayer than
those of Act No. 3031, that said provisions are
penal in nature and, therefore, should operate
retroactively in conformity with the provisions of
article 22 of the Revised Penal Code. This is the

reason why he applied Act No. 3606 instead of Act
No. 3031. Indeed, under Act No. 3606, (1) the
surcharge of 25 per cent is based on the tax only,
instead of on both the tax and the interest, as
provided for in Act No. 3031, and (2) the taxpayer
is allowed twenty days from notice and demand by
rthe Collector of Internal Revenue within which to
pay the tax, instead of ten days only as required by
the old law.
Properly speaking, a statute is penal when it
imposes punishment for an offense committed
against the state which, under the Constitution,
the Executive has the power to pardon. In common
use, however, this sense has been enlarged to
include within the term "penal statutes" all status
which command or prohibit certain acts, and
establish penalties for their violation, and even
those which, without expressly prohibiting certain
acts, impose a penalty upon their commission (59
C. J., p. 1110). Revenue laws, generally, which
impose taxes collected by the means ordinarily
resorted to for the collection of taxes are not
classed as penal laws, although there are
authorities to the contrary. (See Sutherland,
Statutory Construction, 361; Twine Co. vs.
Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice
vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs.
Standard Oil Co., 101 Pa. St., 150; State vs.
Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the
Revised Penal Code is not applicable to the case at
bar, and in the absence of clear legislative intent,
we cannot give Act No. 3606 a retroactive effect.
(e) The plaintiff correctly states that the liability to
pay a tax may arise at a certain time and the tax
may be paid within another given time. As stated
by this court, "the mere failure to pay one's tax
does not render one delinqent until and unless the
entire period has eplased within which the
taxpayer is authorized by law to make such
payment without being subjected to the payment
of penalties for fasilure to pay his taxes within the
prescribed period." (U. S. vs. Labadan, 26 Phil.,
239.)
The defendant maintains that it was the duty of
the executor to pay the inheritance tax before the
delivery of the decedent's property to the trustee.
Stated otherwise, the defendant contends that
delivery to the trustee was delivery to the cestui
que trust, the beneficiery in this case, within the
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 72
meaning of the first paragraph of subsection (b) of
section 1544 of the Revised Administrative Code.
This contention is well taken and is sustained. The
appointment of P. J. M. Moore as trustee was
made by the trial court in conformity with the
wishes of the testator as expressed in his will. It is
true that the word "trust" is not mentioned or
used in the will but the intention to create one is
clear. No particular or technical words are required
to create a testamentary trust (69 C. J., p. 711). The
words "trust" and "trustee", though apt for the
purpose, are not necessary. In fact, the use of
these two words is not conclusive on the question
that a trust is created (69 C. J., p. 714). "To create a
trust by will the testator must indicate in the will
his intention so to do by using language sufficient
to separate the legal from the equitable estate,
and with sufficient certainty designate the
beneficiaries, their interest in the ttrust, the
purpose or object of the trust, and the property or
subject matter thereof. Stated otherwise, to
constitute a valid testamentary trust there must be
a concurrence of three circumstances: (1)
Sufficient words to raise a trust; (2) a definite
subject; (3) a certain or ascertain object; statutes
in some jurisdictions expressly or in effect so
providing." (69 C. J., pp. 705,706.) There is no
doubt that the testator intended to create a trust.
He ordered in his will that certain of his properties
be kept together undisposed during a fixed period,
for a stated purpose. The probate court certainly
exercised sound judgment in appointment a
trustee to carry into effect the provisions of the
will (see sec. 582, Code of Civil Procedure).
P. J. M. Moore became trustee on March 10, 1924.
On that date trust estate vested in him (sec. 582 in
relation to sec. 590, Code of Civil Procedure). The
mere fact that the estate of the deceased was
placed in trust did not remove it from the
operation of our inheritance tax laws or exempt it
from the payment of the inheritance tax. The
corresponding inheritance tax should have been
paid on or before March 10, 1924, to escape the
penalties of the laws. This is so for the reason
already stated that the delivery of the estate to
the trustee was in esse delivery of the same estate
to the cestui que trust, the beneficiary in this case.
A trustee is but an instrument or agent for
the cestui que trust (Shelton vs. King, 299 U. S., 90;
33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When

Moore accepted the trust and took possesson of
the trust estate he thereby admitted that the
estate belonged not to him but to his cestui que
trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65
C. J., p. 692, n. 63). He did not acquire any
beneficial interest in the estate. He took such legal
estate only as the proper execution of the trust
required (65 C. J., p. 528) and, his estate ceased
upon the fulfillment of the testator's wishes. The
estate then vested absolutely in the beneficiary
(65 C. J., p. 542).
The highest considerations of public policy also
justify the conclusion we have reached. Were we
to hold that the payment of the tax could be
postponed or delayed by the creation of a trust of
the type at hand, the result would be plainly
disastrous. Testators may provide, as Thomas
Hanley has provided, that their estates be not
delivered to their beneficiaries until after the lapse
of a certain period of time. In the case at bar, the
period is ten years. In other cases, the trust may
last for fifty years, or for a longer period which
does not offend the rule against petuities. The
collection of the tax would then be left to the will
of a private individual. The mere suggestion of this
result is a sufficient warning against the
accpetance of the essential to the very exeistence
of government. (Dobbins vs. Erie Country, 16 Pet.,
435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100
U. S., 491; 25 Law. ed., 558; Lane County vs.
Oregon, 7 Wall., 71; 19 Law. ed., 101; Union
Refrigerator Transit Co. vs. Kentucky, 199 U. S.,
194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles
River Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law.
ed., 773.) The obligation to pay taxes rests not
upon the privileges enjoyed by, or the protection
afforded to, a citizen by the government but upon
the necessity of money for the support of the state
(Dobbins vs. Erie Country, supra). For this reason,
no one is allowed to object to or resist the
payment of taxes solely because no personal
benefit to him can be pointed out. (Thomas vs.
Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law.
ed., 740.) While courts will not enlarge, by
construction, the government's power of taxation
(Bromley vs. McCaughn, 280 U. S., 124; 74 Law.
ed., 226; 50 Sup. Ct. Rep., 46) they also will not
place upon tax laws so loose a construction as to
permit evasions on merely fanciful and
insubstantial distictions. (U. S. vs. Watts, 1 Bond.,
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 73
580; Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2
Story, 369; Fed. Cas. No. 16,690, followed in
Froelich & Kuttner vs. Collector of Customs, 18
Phil., 461, 481; Castle Bros., Wolf & Sons vs.
McCoy, 21 Phil., 300; Muoz & Co. vs. Hord, 12
Phil., 624; Hongkong & Shanghai Banking
Corporation vs. Rafferty, 39 Phil., 145; Luzon
Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When
proper, a tax statute should be construed to avoid
the possibilities of tax evasion. Construed this way,
the statute, without resulting in injustice to the
taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy
deeply intrenched in our tax system. Thus, no
court is allowed to grant injunction to restrain the
collection of any internal revenue tax ( sec. 1578,
Revised Administrative Code; Sarasola vs. Trinidad,
40 Phil., 252). In the case of Lim Co Chui vs.
Posadas (47 Phil., 461), this court had occassion to
demonstrate trenchment adherence to this policy
of the law. It held that "the fact that on account of
riots directed against the Chinese on October 18,
19, and 20, 1924, they were prevented from
praying their internal revenue taxes on time and
by mutual agreement closed their homes and
stores and remained therein, does not authorize
the Collector of Internal Revenue to extend the
time prescribed for the payment of the taxes or to
accept them without the additional penalty of
twenty five per cent." (Syllabus, No. 3.)
". . . It is of the utmost importance," said the
Supreme Court of the United States, ". . . that the
modes adopted to enforce the taxes levied should
be interfered with as little as possible. Any delay in
the proceedings of the officers, upon whom the
duty is developed of collecting the taxes, may
derange the operations of government, and
thereby, cause serious detriment to the public."
(Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65,
66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents
has been delinquent in the payment of inheritance
tax and, therefore, liable for the payment of
interest and surcharge provided by law in such
cases.
The delinquency in payment occurred on March
10, 1924, the date when Moore became trustee.
The interest due should be computed from that

date and it is error on the part of the defendant to
compute it one month later. The provisions cases
is mandatory (see and cf. Lim Co Chui vs.
Posadas, supra), and neither the Collector of
Internal Revenuen or this court may remit or
decrease such interest, no matter how heavily it
may burden the taxpayer.
To the tax and interest due and unpaid within ten
days after the date of notice and demand thereof
by the Collector of Internal Revenue, a surcharge
of twenty-five per centum should be added (sec.
1544, subsec. (b), par. 2, Revised Administrative
Code). Demand was made by the Deputy Collector
of Internal Revenue upon Moore in a
communiction dated October 16, 1931 (Exhibit 29).
The date fixed for the payment of the tax and
interest was November 30, 1931. November 30
being an official holiday, the tenth day fell on
December 1, 1931. As the tax and interest due
were not paid on that date, the estate became
liable for the payment of the surcharge.
In view of the foregoing, it becomes unnecessary
for us to discuss the fifth error assigned by the
plaintiff in his brief.
We shall now compute the tax, together with the
interest and surcharge due from the estate of
Thomas Hanley in accordance with the conclusions
we have reached.
At the time of his death, the deceased left real
properties valued at P27,920 and personal
properties worth P1,465, or a total of P29,385.
Deducting from this amount the sum of P480.81,
representing allowable deductions under secftion
1539 of the Revised Administrative Code, we have
P28,904.19 as the net value of the estate subject to
inheritance tax.
The primary tax, according to section 1536,
subsection (c), of the Revised Administrative Code,
should be imposed at the rate of one per centum
upon the first ten thousand pesos and two per
centum upon the amount by which the share
exceed thirty thousand pesos, plus an additional
two hundred per centum. One per centum of ten
thousand pesos is P100. Two per centum of
P18,904.19 is P378.08. Adding to these two sums
an additional two hundred per centum, or
P965.16, we have as primary tax, correctly
computed by the defendant, the sum of P1,434.24.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 74
To the primary tax thus computed should be
added the sums collectible under section 1544 of
the Revised Administrative Code. First should be
added P1,465.31 which stands for interest at the
rate of twelve per centum per annum from March
10, 1924, the date of delinquency, to September
15, 1932, the date of payment under protest, a
period covering 8 years, 6 months and 5 days. To
the tax and interest thus computed should be
added the sum of P724.88, representing a
surhcarge of 25 per cent on both the tax and
interest, and also P10, the compromise sum fixed
by the defendant (Exh. 29), giving a grand total of
P3,634.43.
As the plaintiff has already paid the sum of
P2,052.74, only the sums of P1,581.69 is legally
due from the estate. This last sum is P390.42 more
than the amount demanded by the defendant in
his counterclaim. But, as we cannot give the
defendant more than what he claims, we must
hold that the plaintiff is liable only in the sum of
P1,191.27 the amount stated in the counterclaim.
The judgment of the lower court is accordingly
modified, with costs against the plaintiff in both
instances. So ordered.
CASE NO. 12
[G.R. Nos. 154391-92. September 30, 2004]
Spouses ISMAEL and TERESITA
MACASAET, petitioners, vs. Spouses VICENTE and
ROSARIO MACASAET, respondents.
DECISION
PANGANIBAN, J.:
The present case involves a dispute between
parents and children. The children were invited by
the parents to occupy the latters two lots, out of
parental love and a desire to foster family
solidarity. Unfortunately, an unresolved conflict
terminated this situation. Out of pique, the
parents asked them to vacate the premises. Thus,
the children lost their right to remain on the
property. They have the right, however, to be
indemnified for the useful improvements that they
constructed thereon in good faith and with the
consent of the parents. In short, Article 448 of the
Civil Code applies.

The Case
Before us is a Petition for Review[1] under Rule 45
of the Rules of Court, assailing the March 22, 2002
Decision[2] and the June 26, 2002 Resolution[3] of
the Court of Appeals (CA) in CA-GR SP Nos. 56205
& 56467. The challenged Decision disposed as
follows:
WHEREFORE, the assailed Decision
is AFFIRMED with the following MODIFICATIONS:
1. Vicente and Rosario should reimburse Ismael
and Teresita one-half of the value of the useful
improvements introduced in the premises prior to
demand, which is equivalent to P475,000.00. In
case the former refuse to reimburse the said
amount, the latter may remove the improvements,
even though the land may suffer damage
thereby. They shall not, however, cause any more
impairment upon the property leased than is
necessary.
2. The award of attorneys fees is DELETED.
3. The records of these consolidated cases
are REMANDED to the Court of origin for further
proceedings to determine the option to be taken
by Vicente and Rosario and to implement the same
with dispatch.[4]
The assailed Resolution denied petitioners Motion
for Reconsideration.
The Facts
Petitioners Ismael and Teresita[5] Macasaet and
Respondents Vicente and Rosario Macasaet are
first-degree relatives. Ismael is the son of
respondents, and Teresita is his wife.[6]
On December 10, 1997, the parents filed with the
Municipal Trial Court in Cities (MTCC)
of Lipa City an ejectment suit against the
children.[7] Respondents alleged that they were the
owners of two (2) parcels of land covered by
Transfer Certificate of Title (TCT) Nos. T-78521 and
T-103141, situated at Banay-banay, Lipa City; that
by way of a verbal lease agreement, Ismael and
Teresita occupied these lots in March 1992 and
used them as their residence and the situs of their
construction business; and that despite repeated
demands, petitioners failed to pay the agreed
rental of P500 per week.[8]
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 75
Ismael and Teresita denied the existence of any
verbal lease agreement. They claimed that
respondents had invited them to construct their
residence and business on the subject lots in order
that they could all live near one other, employ
Marivic (the sister of Ismael), and help in resolving
the problems of the family.[9] They added that it
was the policy of respondents to allot the land
they owned as an advance grant of inheritance in
favor of their children. Thus, they contended that
the lot covered by TCT No. T-103141 had been
allotted to Ismael as advance inheritance. On the
other hand, the lot covered by TCT No. T-78521
was allegedly given to petitioners as payment for
construction materials used in the renovation of
respondents house.[10]
The MTCC[11] ruled in favor of respondents and
ordered petitioners to vacate the premises. It
opined that Ismael and Teresita had occupied the
lots, not by virtue of a verbal lease agreement, but
by tolerance of Vicente and Rosario.[12] As their
stay was by mere tolerance, petitioners were
necessarily bound by an implied promise to vacate
the lots upon demand.[13] The MTCC dismissed
their contention that one lot had been allotted as
an advance inheritance, on the ground that
successional rights were inchoate.Moreover, it
disbelieved petitioners allegation that the other
parcel had been given as payment for construction
materials.[14]
On appeal, the regional trial court[15] (RTC) upheld
the findings of the MTCC. However, the RTC
allowed respondents to appropriate the building
and other improvements introduced by
petitioners, after payment of the indemnity
provided for by Article 448 in relation to Articles
546 and 548 of the Civil Code.[16] It added that
respondents could oblige petitioners to purchase
the land, unless its value was considerably more
than the building. In the latter situation,
petitioners should pay rent if respondents would
not choose to appropriate the building.[17]
Upon denial of their individual Motions for
Reconsideration, the parties filed with the CA
separate Petitions for Review, which were later
consolidated.[18]
Ruling of the Court of Appeals

The CA sustained the finding of the two lower
courts that Ismael and Teresita had been
occupying the subject lots only by the tolerance of
Vicente and Rosario.[19] Thus, possession of the
subject lots by petitioners became illegal upon
their receipt of respondents letter to vacate it.[20]
Citing Calubayan v. Pascual,[21] the CA further ruled
that petitioners status was analogous to that of a
lessee or a tenant whose term of lease had
expired, but whose occupancy continued by
tolerance of the owner.[22] Consequently, in
ascertaining the right of petitioners to be
reimbursed for the improvements they had
introduced on respondents properties,[23] the
appellate court applied the Civil Codes provisions
on lease. The CA modified the RTC Decision by
declaring that Article 448 of the Civil Code was
inapplicable. The CA opined that under Article
1678 of the same Code, Ismael and Teresita had
the right to be reimbursed for one half of the value
of the improvements made.[24]
Not satisfied with the CAs ruling, petitioners
brought this recourse to this Court.[25]
The Issues
Petitioners raise the following issues for our
consideration:
1. a) Whether or not Section 17[,] Rule 70 of the
Rules of Court on Judgment should apply in the
rendition of the decision in this case;
b) Whether or not the Complaint should have been
dismissed;
c) Whether or not damages including attorneys
fees should have been awarded to herein
petitioners;
2. a) Whether or not the rule on appearance of
parties during the Pretrial should apply on
appearance of parties during Preliminary
Conference in an unlawful detainer suit;
b) Whether or not the case of Philippine Pryce
Assurance Corporation vs. Court of Appeals (230
SCRA 164) is applicable to appearance of parties in
an unlawful detainer suit;
3. Whether or not Article 1678 of the Civil Code
should apply to the case on the matters of
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 76
improvements, or is it Article 447 of the Civil Code
in relation to the Article 453 and 454 thereof that
should apply, if ever to apply the Civil Code;
4. Whether or not the [D]ecision of the Court of
Appeals is supported by evidence, appropriate
laws, rules and jurisprudence;
5. Whether or not Assisting Judge Norberto
Mercado of the MTCC Lipa City should be held
accountable in rendering the MTCC [D]ecision;
6. Whether or not Atty. Glenn Mendoza and Atty.
Andrew Linatoc of the same [l]aw office should be
held accountable for pursuing the [e]jectment
case[.][26]
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Ejectment
Who is entitled to the physical or material
possession of the premises? At the outset, we
stress that this is the main issue in ejectment
proceedings.[27] In the present case, petitioners
failed to justify their right to retain possession of
the subject lots, which respondents own. Since
possession is one of the attributes of
ownership,[28] respondents clearly are entitled to
physical or material possession.
Allegations of the Complaint
Petitioners allege that they cannot be ejected from
the lots, because respondents based their
Complaint regarding the nonpayment of rentals on
a verbal lease agreement, which the latter failed to
prove.[29] Petitioners contend that the lower courts
erred in using another ground (tolerance of
possession) to eject them.
In actions for unlawful detainer, possession that
was originally lawful becomes unlawful upon the
expiration or termination of the defendants right
to possess, arising from an express or implied
contract.[30] In other words, the plaintiffs cause of
action comes from the expiration or termination of
the defendants right to continue
possession.[31] The case resulting therefrom must
be filed within one year from the date of the last
demand.

To show a cause of action in an unlawful detainer,
an allegation that the defendant is illegally
withholding possession from the plaintiff is
sufficient. The complaint may lie even if it does not
employ the terminology of the law, provided the
said pleading is couched in a language adequately
stating that the withholding of possession or the
refusal to vacate has become unlawful.[32] It is
equally settled that the jurisdiction of the court, as
well as the nature of the action, is determined
from the averments of the complaint.[33]
In the present case, the Complaint alleged that
despite demands, petitioners refused to pay the
accrued rentals and [to] vacate the leased
premises.[34] It prayed that judgment be rendered
[o]rdering [petitioners] and all those claiming
rights under them to vacate the properties x x x
and remove the structures x x x constructed
thereon.[35]Effectively then, respondents averred
that petitioners original lawful occupation of the
subject lots had become unlawful.
The MTCC found sufficient cause to eject
petitioners. While it disbelieved the existence of a
verbal lease agreement, it nevertheless concluded
that petitioners occupation of the subject lots was
by mere tolerance of respondents. Basing its
conclusion on the fact that the parties were close
relatives, the MTCC ruled thus:
x x x [T]he parties herein are first degree
relatives. Because of this relationship, this Court
takes judicial notice of the love, care, concern and
protection imbued upon the parents towards their
[children], i.e., in the instant case, the love, care,
concern and protection of the [respondents] to the
[petitioners]. With this in mind, this Court is
inclined to believe the position of the [petitioners]
that there was no such verbal lease agreement
between the parties herein that took place in
1992. x x x.
From the allegations of the [petitioners], this Court
is convinced that their stay and occupancy of the
subject premises was by mere tolerance of the
[respondents], and not by virtue of a verbal lease
agreement between them.[36]
Having found a cause of action for unlawful
detainer, the MTCC (as well as the RTC and the CA)
did not err in ordering the ejectment of petitioners
as prayed for by respondents. There was no
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 77
violation of Section 17 of Rule 70[37] of the Rules of
Court. As earlier explained, unlawful detainer was
sufficiently alleged in the Complaint and duly
proven during the trial. Significantly, the issue of
whether there was enough ground to eject
petitioners was raised during the preliminary
conference.[38]
Not Merely Tolerated
Possession
Petitioners dispute the lower courts finding that
they occupied the subject lots on the basis of mere
tolerance. They argue that their occupation was
not under such condition, since respondents had
invited, offered and persuaded them to use those
properties.[39]
This Court has consistently held that those who
occupy the land of another at the latters tolerance
or permission, without any contract between
them, are necessarily bound by an implied promise
that the occupants will vacate the property upon
demand.[40] A summary action for ejectment is the
proper remedy to enforce this implied
obligation.[41]The unlawful deprivation or
withholding of possession is to be counted from
the date of the demand to vacate.[42]
Toleration is defined as the act or practice of
permitting or enduring something not wholly
approved of.[43] Sarona v. Villegas[44] described
what tolerated acts means, in this language:
Professor Arturo M. Tolentino states that acts
merely tolerated are those which by reason of
neighborliness or familiarity, the owner of
property allows his neighbor or another person to
do on the property; they are generally those
particular services or benefits which ones property
can give to another without material injury or
prejudice to the owner, who permits them out of
friendship or courtesy. x x x. And, Tolentino
continues, even though this is continued for a long
time, no right will be acquired by prescription. x x
x. Further expounding on the concept, Tolentino
writes: There is tacit consent of the possessor to
the acts which are merely tolerated. Thus, not
every case of knowledge and silence on the part of
the possessor can be considered mere
tolerance. By virtue of tolerance that is considered
as an authorization, permission or license, acts of

possession are realized or performed. The
question reduces itself to the existence or non-
existence of the permission.[45]
We hold that the facts of the present case rule out
the finding of possession by mere
tolerance. Petitioners were able to establish that
respondents had invited them to occupy the
subject lots in order that they could all live near
one other and help in resolving family
problems.[46] By occupying those lots, petitioners
demonstrated their acceptance of the
invitation. Hence, there was a meeting of minds,
and an agreement regarding possession of the lots
impliedly arose between the parties.
The occupancy of the subject lots by petitioners
was not merely something not wholly approved of
by respondents. Neither did it arise from what
Tolentino refers to as neighborliness or familiarity.
In point of fact, their possession was upon the
invitation of and with the complete approval of
respondents, who desired that their children
would occupy the premises. It arose from familial
love and a desire for family solidarity, which are
basic Filipino traits.
Right to Use the Lots Terminated
That Ismael and Teresita had a right to occupy the
lots is therefore clear. The issue is the duration of
possession. In the absence of a stipulation on this
point, Article 1197 of the Civil Code allows the
courts to fix the duration or the period.
Article 1197. If the obligation does not fix a period,
but from its nature and the circumstances it can be
inferred that a period was intended, the courts
may fix the duration thereof.
The courts shall also fix the duration of the period
when it depends upon the will of the debtor.
In every case the courts shall determine such
period as may under the circumstances have been
probably contemplated by the parties. Once fixed
by the courts, the period cannot be changed by
them.
Article 1197, however, applies to a situation in
which the parties intended a period. Such
qualification cannot be inferred from the facts of
the present case.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 78
To repeat, when Vicente and Rosario invited their
children to use the lots, they did so out of parental
love and a desire for solidarity expected from
Filipino parents. No period was intended by the
parties. Their mere failure to fix the duration of
their agreement does not necessarily justify or
authorize the courts to do so.[47]
Based on respondents reasons for gratuitously
allowing petitioners to use the lots, it can be safely
concluded that the agreement subsisted as long as
the parents and the children mutually benefited
from the arrangement. Effectively, there is a
resolutory condition in such an
agreement.[48] Thus, when a change in the
condition existing between the parties occurs --
like a change of ownership, necessity, death of
either party or unresolved conflict or animosity --
the agreement may be deemed
terminated. Having been based on parental love,
the agreement would end upon the dissipation of
the affection.
When persistent conflict and animosity overtook
the love and solidarity between the parents and
the children, the purpose of the agreement
ceased.[49] Thus, petitioners no longer had any
cause for continued possession of the lots. Their
right to use the properties became untenable. It
ceased upon their receipt of the notice to
vacate. And because they refused to heed the
demand, ejectment was the proper remedy
against them. Their possession, which was
originally lawful, became unlawful when the
reason therefor -- love and solidarity -- ceased to
exist between them.
No Right to Retain
Possession
Petitioners have not given this Court adequate
reasons to reverse the lower courts dismissal of
their contention that Lots T-78521 and T-103141,
respectively, were allegedly allotted to them as
part of their inheritance and given in consideration
for past debts.
The right of petitioners to inherit from their
parents is merely inchoate and is vested only upon
the latters demise. Indisputably, rights of
succession are transmitted only from the moment
of death of the decedent.[50] Assuming that there

was an allotment of inheritance, ownership
nonetheless remained with
respondents. Moreover, an intention to confer
title to certain persons in the future is not
inconsistent with the owners taking back
possession in the meantime for any reason
deemed sufficient.[51] Other than their self-serving
testimonies and their affidavits, petitioners
offered no credible evidence to support their
outlandish claim of inheritance allocation.
We also agree with the lower courts that
petitioners failed to prove the allegation that,
through a dation in payment, Lot T-78521 had
been transferred to the latter as payment for
respondents debts.[52] The evidence presented by
petitioners related only to the alleged
indebtedness of the parents arising from the
latters purported purchases and
advances.[53] There was no sufficient proof that
respondents had entered into a contract of dation
to settle the alleged debt. Petitioners even stated
that there was a disagreement in the accounting of
the purported debt,[54] a fact that disproves a
meeting of the minds with the parents.
Petitioners also admitted that a portion of the
alleged debt is the subject matter of a collection
case against respondents (Civil Case No. 0594-
96).[55] Thus, the formers allegation that the
indebtedness has been paid through a dation
cannot be given credence, inconsistent as it is with
their action to recover the same debt.
Despite their protestations, petitioners recognized
the right of the parents to recover the premises
when they admitted in their Position Paper filed
with the MTCC that respondents had a title to the
lots.
The [respondents] want to get their property
because the title is theirs, the [petitioners] do not
object but what is due the [petitioners] including
the reparation for the tarnish of their dignity and
honor must be given the [petitioners] for the
benefits of their children before the premises will
be turned over.[56]
As a rule, the right of ownership carries with it the
right of possession.
Second Issue:
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 79
Appearance at the Preliminary Conference
Section 8 of Rule 70 of the Rules of Court requires
the appearance of the plaintiff and the defendant
during the preliminary conference. On the basis of
this provision, petitioners claim that the MTCC
should have dismissed the case upon the failure of
respondents to attend the conference. However,
petitioners do not dispute that an attorney-in-fact
with a written authorization from respondents
appeared during the preliminary
conference.[57] The issue then is whether the rules
on ejectment allow a representative to substitute
for a partys personal appearance.
Unless inconsistent with Rule 70, the provisions of
Rule 18 on pretrial applies to the preliminary
conference.[58] Under Section 4 of this Rule, the
nonappearance of a party may be excused by the
showing of a valid cause; or by the appearance of a
representative, who has been fully authorized in
writing to enter into an amicable settlement, to
submit to alternative modes of dispute resolution,
and to enter into stipulations or admissions of
facts and of documents.[59]
Section 4 of Rule 18 may supplement Section 8 of
Rule 70. Thus, the spirit behind the exception to
personal appearance under the rules on pretrial is
applicable to the preliminary conference. If there
are valid reasons or if a representative has a
special authority, a partys appearance may be
waived. As petitioners are challenging only the
applicability of the rules on pretrial to the rule on
preliminary conference, the written authorization
from respondents can indeed be readily
considered as a special authorization.
Third Issue:
Rights of a Builder in Good Faith
As applied to the present case, accession refers to
the right of the owner to everything that is
incorporated or attached to the
property.[60] Accession industrial -- building,
planting and sowing on an immovable -- is
governed by Articles 445 to 456 of the Civil Code.
Articles 447 and 1678 of the
Civil Code Inapplicable

To buttress their claim of reimbursement for the
improvements introduced on the property,
petitioners cite Article 447.[61] They allege that the
CA erred in applying Article 1678, since they had
no lease agreement with respondents.
We clarify. Article 447 is not applicable, because it
relates to the rules that apply when the owner of
the property uses the materials of another. It does
not refer to the instance when a possessor builds
on the property of another, which is the factual
milieu here.
In view of the unique factual setting of the instant
case, the contention of petitioners regarding the
inapplicability of Article 1678 deserves
attention. The CA applied the provisions on lease,
because it found their possession by mere
tolerance comparable with that of a lessee, per the
pronouncement in Calubayan v. Pascual,[62] from
which we quote:
x x x. It has been held that a person who occupies
the land of another at the latters tolerance or
permission, without any contract between them, is
necessarily bound by an implied promise that he
will vacate upon demand, failing which a summary
action for ejectment is the proper remedy against
them. The status of defendant is analogous to that
of a lessee or tenant whose term of lease has
expired but whose occupancy continued by
tolerance of the owner. In such a case, the
unlawful deprivation or withholding of possession
is to be counted from the date of the demand to
vacate.[63] (Emphasis in the original.)
As explained earlier, Ismael and Teresitas
possession of the two lots was not by mere
tolerance, a circumstance that negates the
applicability of Calubayan.
Article 448 Applicable
On the other hand, when a person builds in good
faith on the land of another, the applicable
provision is Article 448, which reads:[64]
Article 448. The owner of the land on which
anything has been built, sown or planted in good
faith, shall have the right to appropriate as his own
the works, sowing or planting, after payment of
the indemnity provided for in Articles 546 and 548,
or to oblige the one who built or planted to pay
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 80
the price of the land, and the one who sowed, the
proper rent. However, the builder or planter
cannot be obliged to buy the land if its value is
considerably more than that of the building or
trees. In such case, he shall pay reasonable rent, if
the owner of the land does not choose to
appropriate the building or trees after proper
indemnity. The parties shall agree upon the terms
of the lease and in case of disagreement, the court
shall fix the terms thereof.
This Court has ruled that this provision covers only
cases in which the builders, sowers or planters
believe themselves to be owners of the land or, at
least, to have a claim of title thereto.[65] It does not
apply when the interest is merely that of a holder,
such as a mere tenant, agent or
usufructuary.[66] From these pronouncements,
good faith is identified by the belief that the land is
owned; or that -- by some title -- one has the right
to build, plant, or sow thereon.[67]
However, in some special cases, this Court has
used Article 448 by recognizing good faith beyond
this limited definition. Thus, in Del Campo v.
Abesia,[68] this provision was applied to one whose
house -- despite having been built at the time he
was still co-owner -- overlapped with the land of
another.[69] This article was also applied to cases
wherein a builder had constructed improvements
with the consent of the owner. The Court ruled
that the law deemed the builder to be in good
faith.[70] In Sarmiento v. Agana,[71]the builders
were found to be in good faith despite their
reliance on the consent of another, whom they
had mistakenly believed to be the owner of the
land.[72]
Based on the aforecited special cases, Article 448
applies to the present factual milieu. The
established facts of this case show that
respondents fully consented to the improvements
introduced by petitioners. In fact, because the
children occupied the lots upon their invitation,
the parents certainly knew and approved of the
construction of the improvements introduced
thereon.[73] Thus, petitioners may be deemed to
have been in good faith when they built the
structures on those lots.
The instant case is factually similar to Javier v.
Javier.[74] In that case, this Court deemed the son

to be in good faith for building the improvement
(the house) with the knowledge and consent of his
father, to whom belonged the land upon which it
was built. Thus, Article 448[75] was applied.
Rule on Useful Expenses
The structures built by petitioners were useful
improvements, because they augmented the value
or income of the bare lots.[76] Thus, the indemnity
to be paid by respondents under Article 448 is
provided for by Article 546, which we quote:
Art. 546. Necessary expenses shall be refunded to
every possessor; but only the possessor in good
faith may retain the thing until he has been
reimbursed therefor.
Useful expenses shall be refunded only to the
possessor in good faith with the same right of
retention, the person who has defeated him in the
possession having the option of refunding the
amount of the expenses or of paying the increase
in value which the thing may have acquired by
reason thereof.
Consequently, respondents have the right to
appropriate -- as their own -- the building and
other improvements on the subject lots, but only
after (1) refunding the expenses of petitioners or
(2) paying the increase in value acquired by the
properties by reason thereof. They have the option
to oblige petitioners to pay the price of the land,
unless its value is considerably more than that of
the structures -- in which case, petitioners shall
pay reasonable rent.
In accordance with Depra v. Dumlao,[77] this case
must be remanded to the trial court to determine
matters necessary for the proper application of
Article 448 in relation to Article 546. Such matters
include the option that respondents would take
and the amount of indemnity that they would pay,
should they decide to appropriate the
improvements on the lots. We disagree with the
CAs computation of useful expenses, which were
based only on petitioners bare allegations in their
Answer.[78]
Ruling on Improvement Justified
While, ordinarily, the jurisdiction of the MTCC on
ejectment proceedings is limited to the issue of
physical or material possession of the property in
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 81
question, this Court finds it necessary to
abbreviate the issue on the improvements in
relation to Article 448. First, the determination of
the parties right to those improvements is
intimately connected with the MTCC proceedings
in the light of the ejectment of petitioners. Second,
there is no dispute that while they constructed the
improvements, respondents owned the
land. Third, both parties raised no objection when
the RTC and the CA ruled accordingly on this
matter.
Equitable considerations compel us to settle this
point immediately, pro hoc vice, to avoid needless
delay. Both parties have already been heard on
this issue; to dillydally or equivocate would not
serve the cause of substantial justice.
Other Issues Raised
Given the foregoing rulings, it is no longer
necessary to address petitioners allegation that
the MTCC judge and respondents lawyers should
be respectively held personally accountable for the
Decision and for filing the case.[79] The insinuation
of petitioners that the lawyers manipulated the
issuance of a false barangay certification is
unavailing.[80]Their contention that respondents
did not attend the barangay conciliation
proceedings was based solely on hearsay, which
has little or no probative value.[81]
WHEREFORE, the assailed Decision and Resolution
of the Court of Appeals are AFFIRMED with the
following MODIFICATIONS:
1. The portion requiring Spouses Vicente and
Rosario Macasaet to reimburse one half of the
value of the useful improvements, amounting
to P475,000, and the right of Spouses Ismael and
Rosita Macasaet to remove those improvements
(if the former refuses to reimburse) is DELETED.
2. The case is REMANDED to the court of origin for
further proceedings to determine the facts
essential to the proper application of Articles 448
and 546 of the Civil Code, specifically to the
following matters:
a. Spouses Vicente and Rosario Macasaets option
to appropriate -- as their own -- the improvements
on the lots, after paying the indemnity, as
provided under Article 546 in relation to Article

448 of the Civil Code; or in requiring Spouses
Ismael and Rosita Macasaet to pay for the value of
the lots, unless it is considerably more than that of
the improvements, in which case petitioners shall
pay reasonable rent based upon the terms
provided under the Civil Code
b. The value of the useful expenses incurred by
Spouses Ismael and Rosita Macasaet in the
construction of the improvements on the lots
c. The increase in value acquired by the lots by
reason of the useful improvements
d. Spouses Vicente and Rosario Macasaets choice
of type of indemnity to be paid (whether b or c)
e. Whether the value of the lots is considerably
more than that of the improvements built thereon
No pronouncement as to costs.
SO ORDERED.
CASE NO. 13
[G.R. No. 156879. January 20, 2004]
FLORDELIZA CALPATURA FLORA, DOMINADOR
CALPATURA and TOMAS CALPATURA, JR., Heirs of
TOMAS CALPATURA, SR., petitioners, vs. ROBERTO,
ERLINDA, DANIEL, GLORIA, PATRICIO, JR. and
EDNA, all surnamed PRADO and NARCISA
PRADO, respondents.
DECISION
YNARES-SANTIAGO, J.:
The property under litigation is the northern half
portion of a residential land consisting of 552.20
square meters, more or less, situated at
19th Avenue, Murphy, Quezon City and covered by
Transfer Certificate of Title No. 71344 issued on
August 15, 1963 by the Register of Deeds of
Quezon City in the name of Narcisa Prado and her
children by her first husband, Patricio Prado, Sr.,
namely, Roberto, Erlinda, Daniel, Gloria, Patricio,
Jr. and Edna, respondents herein.
The pertinent facts are as follows:
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 82
On December 19, 1959, Patricio Prado, Sr.
died. Narcisa subsequently married Bonifacio
Calpatura. In order to support her minor children
with her first husband, Narcisa and her brother-in-
law, Tomas Calpatura, Sr., executed on April 26,
1968 an Agreement of Purchase and Sale whereby
the former agreed to sell to the latter the northern
half portion of the property for the sum of
P10,500.00.[1] On July 28, 1973, Narcisa executed
a Deed of Absolute Sale in favor of Tomas over the
said property.[2]
In 1976, Tomas daughter, Flordeliza Calpatura
Flora, built a two-storey duplex with firewall[3] on
the northern half portion of the
property. Respondents, who occupied the
southern half portion of the land, did not object to
the construction. Flordeliza Flora and her husband
Wilfredo declared the property for taxation
purposes[4] and paid the corresponding taxes
thereon.[5] Likewise, Maximo Calpatura, the son of
Tomas cousin, built a small house on the northern
portion of the property.
On April 8, 1991, respondents filed a complaint for
declaration of nullity of sale and delivery of
possession of the northern half portion of the
subject property against petitioners Flordeliza
Calpatura Flora, Dominador Calpatura and Tomas
Calpatura, Jr. before the Regional Trial Court of
Quezon City, Branch 100, docketed as Civil Case
No. Q-91-8404.[6] Respondents alleged that the
transaction embodied in the Agreement to
Purchase and Sale between Narcisa and Tomas
was one of mortgage and not of sale; that Narcisas
children tried to redeem the mortgaged property
but they learned that the blank document which
their mother had signed was transformed into
a Deed of Absolute Sale; that Narcisa could not
have sold the northern half portion of the property
considering that she was prohibited from selling
the same within a period of 25 years from its
acquisition, pursuant to the condition annotated
at the back of the title;[7] that Narcisa, as natural
guardian of her children, had no authority to sell
the northern half portion of the property which
she and her children co-owned; and that only
P5,000.00 out of the consideration of P10,500.00
was paid by Tomas.
In their answer, petitioners countered that Narcisa
owned 9/14 of the property, consisting of as her

share in the conjugal partnership with her first
husband and 1/7 as her share in the estate of her
deceased husband; that the consideration of the
sale in the amount of P10,500.00 had been fully
paid as of April 1, 1968; that Narcisa sold her
conjugal share in order to support her minor
children; that Narcisas claim was barred by laches
and prescription; and that the Philippine Homesite
and Housing Corporation, not the respondents,
was the real party in interest to question the sale
within the prohibited period.
On April 2, 1997, the court a quo[8] dismissed the
complaint. It found that the sale was valid; that
the Agreement to Purchase and Sale and the Deed
of Absolute Sale were duly executed; that the sum
of P10,500.00 as selling price for the subject
property was fully paid there being no demand for
the payment of the remaining balance; that the
introduction of improvements thereon by the
petitioners was without objection from the
respondents; and that Roberto and Erlinda failed
to contest the transaction within four years after
the discovery of the alleged fraud and reaching the
majority age in violation of Article 1391 of the Civil
Code.[9]
Petitioners appealed the decision to the Court of
Appeals, where it was docketed as CA-G.R. CV No.
56843. On October 3, 2002, a decision[10] was
rendered by the Court of Appeals declaring that
respondents were co-owners of the subject
property, thus the sale was valid only insofar as
Narcisas 1/7 undivided share thereon was
concerned. The dispositive portion of the said
decision reads:
WHEREFORE, the appealed Decision is AFFIRMED,
with the MODIFICATION that the sale in dispute is
declared valid only with respect to the one-
seventh (1/7) share of plaintiff-appellant NARCISA
H. PRADO in the subject property, which is
equivalent to 78.8857 square meters. In all other
respects, the same decision stands. No
pronouncement as to costs.
SO ORDERED.[11]
Petitioner filed a motion for reconsideration which
was denied in a Resolution dated January 14,
2003.[12] Hence this petition for review on the
following assigned errors:
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 83
I
THE HONORABLE COURT OF APPEALS COMMITTED
A GRAVE ABUSE OF DISCRETION IN MODIFYING
THE DECISION RENDERED BY THE REGIONAL TRIAL
COURT WITHOUT TAKING INTO CONSIDERATION
THAT, ASIDE FROM THE DECLARATION OF THE
VALIDITY OF THE SALE, THE PETITIONERS HEREIN
HAVE TAKEN ACTUAL POSSESSION OF THE SAID
ONE-HALF (1/2) TO THE EXCLUSION OF THE
RESPONDENTS AND INTRODUCED
IMPROVEMENTS THEREON.
II
THE HONORABLE COURT OF APPEALS COMMITTED
A GRAVE ABUSE OF DISCRETION IN MODIFYING
THE DECISION RENDERED BY THE REGIONAL TRIAL
COURT WITHOUT TAKING INTO CONSIDERATION
THE CLEAR AND UNEQUIVOCAL STATEMENT IN
THE SALE THAT THE SAME PERTAINS TO THE
CONJUGAL SHARE OF RESPONDENT NARCISA
PRADO AND THE OTHER RESPONDENTS HAD NO
FINANCIAL CAPACITY TO ACQUIRE THE SAID
PROPERTY SINCE THEY WERE MINORS THEN AT
THE ISSUANCE OF THE SAID TCT NO. 71344 ON
AUGUST 15, 1963.
III
THE HONORABLE COURT OF APPEALS COMMITTED
A GRAVE ABUSE OF DISCRETION IN NOT
DECLARING THE HEREIN RESPONDENTS GUILTY OF
LACHES IN FILING THE INSTANT CASE ONLY ON
APRIL 8, 1991, THAT IS 18 YEARS AFTER THE SAID
SALE WITH THE PETITIONERS TAKING ACTUAL
POSSESSION OF SAID PORTION OF THE PROPERTY.
IV
THAT THE DECISION OF THE HON. COURT OF
APPEALS WILL UNDULY ENRICH THE RESPONDENTS
AT THE EXPENSE OF THE HEREIN PETITIONERS.[13]
At the outset, it must be stressed that only
questions of law may be raised in petitions for
review before this Court under Rule 45 of the Rules
of Court.[14] It was thus error for petitioners to
ascribe to the Court of Appeals grave abuse of
discretion. This procedural lapse notwithstanding,
in the interest of justice, this Court shall treat the
issues as cases of reversible error.[15]

The issues for resolution are: (1) Is the subject
property conjugal or paraphernal? (2) Is the
transaction a sale or a mortgage? (3) Assuming
that the transaction is a sale, what was the area of
the land subject of the sale?
Article 160 of the Civil Code, which was in effect at
the time the sale was entered into, provides that
all property of the marriage is presumed to belong
to the conjugal partnership unless it is proved that
it pertains exclusively to the husband or to the
wife. Proof of acquisition during the marriage is a
condition sine qua non in order for the
presumption in favor of conjugal ownership to
operate.[16]
In the instant case, while Narcisa testified during
cross-examination that she bought the subject
property from Peoples Homesite Housing
Corporation with her own funds,[17] she, however
admitted in the Agreement of Purchase and
Sale and the Deed of Absolute Sale that the
property was her conjugal share with her first
husband, Patricio, Sr.[18]A verbal assertion that she
bought the land with her own funds is inadmissible
to qualify the terms of a written agreement under
the parole evidence rule.[19] The so-called parole
evidence rule forbids any addition to or
contradiction of the terms of a written instrument
by testimony or other evidence purporting to show
that, at or before the execution of the parties
written agreement, other or different terms were
agreed upon by the parties, varying the purport of
the written contract. Whatever is not found in the
writing is understood to have been waived and
abandoned.[20]
Anent the second issue, the Deed of Absolute
Sale executed by Narcisa in favor of Tomas is
contained in a notarized[21] document. In Spouses
Alfarero, et al. v. Spouses Sevilla, et al.,[22] it was
held that a public document executed and attested
through the intervention of a notary public is
evidence of the facts in a clear, unequivocal
manner therein expressed. Otherwise stated,
public or notarial documents, or those instruments
duly acknowledged or proved and certified as
provided by law, may be presented in evidence
without further proof, the certificate of
acknowledgment being prima facie evidence of the
execution of the instrument or document
involved. In order to contradict the presumption of
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 84
regularity of a public document, evidence must be
clear, convincing, and more than merely
preponderant.
It is well-settled that in civil cases, the party that
alleges a fact has the burden of proving
it.[23] Except for the bare allegation that the
transaction was one of mortgage and not of sale,
respondents failed to adduce evidence in support
thereof. Respondents also failed to controvert the
presumption that private transactions have been
fair and regular.[24]
Furthermore, Narcisa, in fact did not deny that she
executed an Affidavit allowing spouses Wilfredo
and Flordeliza Flora to construct a firewall
between the two-storey duplex and her house
sometime in 1976. The duplex was made of strong
materials, the roofing being galvanized
sheets. While the deed of sale between Tomas and
Narcisa was never registered nor annotated on the
title, respondents had knowledge of the
possession of petitioners of the northern half
portion of the property. Obviously, respondents
recognized the ownership of Tomas, petitioners
predecessor-in-interest.
Respondents belatedly claimed that only
P5,000.00 out of the P10,500.00 consideration was
paid. Both the Agreement of Purchase and
Sale and the Deed of Absolute Sale state that said
consideration was paid in full. Moreover, the
presumption is that there was sufficient
consideration for a written contract.[25]
The property being conjugal, upon the death of
Patricio Prado, Sr., one-half of the subject property
was automatically reserved to the surviving
spouse, Narcisa, as her share in the conjugal
partnership. Particios rights to the other half, in
turn, were transmitted upon his death to his heirs,
which includes his widow Narcisa, who is entitled
to the same share as that of each of the legitimate
children. Thus, as a result of the death of Patricio,
a regime of co-ownership arose between Narcisa
and the other heirs in relation to the property. The
remaining one-half was transmitted to his heirs by
intestate succession. By the law on intestate
succession, his six children and Narcisa Prado
inherited the same at one-seventh (1/7) each pro
indiviso.[26] Inasmuch as Narcisa inherited one-
seventh (1/7) of her husband's conjugal share in

the said property and is the owner of one-half
(1/2) thereof as her conjugal share, she owns a
total of 9/14 of the subject property. Hence,
Narcisa could validly convey her total undivided
share in the entire property to Tomas. Narcisa and
her children are deemed co-owners of the subject
property.
Neither can the respondents invoke the
proscription of encumbering the property within
25 years from acquisition. In Sarmiento, et al. v.
Salud, et al.,[27] it was held that:
xxx The condition that the appellees Sarmiento
spouses could not resell the property except to the
Peoples Homesite and Housing Corporation (PHHC
for short) within the next 25 years after appellees
purchasing the lot is manifestly a condition in favor
of the PHHC, and not one in favor of the Sarmiento
spouses. The condition conferred no actionable
right on appellees herein, since it operated as a
restriction upon their jus disponendi of the
property they bought, and thus limited their right
of ownership. It follows that on the assumption
that the mortgage to appellee Salud and the
foreclosure sale violated the condition in the
Sarmiento contract, only the PHHC was entitled to
invoke the condition aforementioned, and not the
Sarmientos. The validity or invalidity of the
sheriff's foreclosure sale to appellant Salud thus
depended exclusively on the PHHC; the latter
could attack the sale as violative of its right of
exclusive reacquisition; but it (PHHC) also could
waive the condition and treat the sale as good, in
which event, the sale can not be assailed for
breach of the condition aforestated.
Finally, no particular portion of the property could
be identified as yet and delineated as the object of
the sale considering that the property had not yet
been partitioned in accordance with the Rules of
Court.[28] While Narcisa could validly sell one half
of the subject property, her share being 9/14 of
the same, she could not have particularly
conveyed the northern portion thereof before the
partition, the terms of which was still to be
determined by the parties before the trial court.
WHEREFORE, the Decision of the Court of Appeals
on October 3, 2002, as well as the Resolution
dated January 14, 2003 is PARTLY
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 85
AFFIRMED subject to the following
MODIFICATIONS:
1) Narcisa Prado is entitled to 9/14 of the
residential land consisting of 552.20 square
meters, more or less, situated at 19th Avenue,
Murphy, Quezon City and covered by Transfer
Certificate of Title No. 71344;
2) the sale of the undivided one half portion
thereof by Narcisa Prado in favor of Tomas
Calpatura, Sr. is valid.
Furthermore, the case is REMANDED to the court
of origin, only for the purpose of determining the
specific portion being conveyed in favor of Tomas
Calpatura, Sr. pursuant to the partition that will be
agreed upon by the respondents.
SO ORDERED.
CASE NO. 14
[G.R. No. 94918. September 2, 1992.]
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES,
MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON
and REGINIO I. SUAREZ, Petitioners, v. THE COURT
OF APPEALS, VALENTE RAYMUNDO, VIOLETA
RAYMUNDO, MA. CONCEPCION VITO and
VIRGINIA BANTA, Respondents.
Villareal Law Offices, for Petitioners.
Nelson Loyola for Private Respondent.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME;
PROPRIETARY INTEREST OF THE CHILDREN,
DIFFERENT AND ADVERSE FROM THEIR MOTHER.
The legitime of the surviving spouse is equal to
the legitime of each child. The proprietary interest
of petitioners in the levied and auctioned property
is different from and adverse to that of their
mother. Petitioners became co-owners of the
property not because of their mother but through
their own right as children of their deceased
father. Therefore, petitioners are not barred in any
way from instituting the action to annul the
auction sale to protect their own interest.

DECISION
NOCON, J.:
The ultimate issue before Us is whether or not
private respondents can validly acquire all the five
(5) parcels of land co-owned by petitioners and
registered in the name of petitioners deceased
father. Marcelo Suarez, whose estate has not been
partitioned or liquidated, after the said properties
were levied and publicly sold en masse to private
respondents to satisfy the personal judgment debt
of Teofista Suarez, the surviving spouse of Marcelo
Suarez, mother of
herein petitioners.chanrobles law library
The undisputed facts of the case are as
follows:chanrob1es virtual 1aw library
Herein petitioners are brothers and sisters. Their
father died in 1955 and since then his estate
consisting of several valuable parcels of land in
Pasig, Metro Manila has lot been liquidated or
partitioned. In 1977, petitioners widowed mother
and Rizal Realty Corporation lost in the
consolidated cases for rescission of contract and
for damages, and were ordered by Branch 1 of the
then Court of First Instance of Rizal (now Branch
151, RTC of Pasig) to pay, jointly and severally,
herein respondents the aggregate principal
amount of about P70,000 as damages. 1
The judgment against petitioners mother and
Rizal Realty Corporation having become final and
executory, five (5) valuable parcel of land in Pasig,
Metro Manila, (worth to be millions then) were
levied and sold on execution on June 24, 1983 in
favor of the private respondents as the highest
bidder for the amount of P94,170.000. Private
respondents were then issued a certificate of sale
which was subsequently registered or August 1,
1983.
On June 21, 1984 before the expiration of the
redemption period, petitioners filed a
reinvindicatory action 2 against private
respondents and the Provincial Sheriff of Rizal,
thereafter docketed as Civil Case No. 51203, for
the annulment of the auction sale and the
recovery of the ownership of the levied pieces of
property. Therein, they alleged, among others,
that being strangers to the case decided against
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 86
their mother, they cannot be held liable therefor
and that the five (5) parcels of land, of which they
are co-owners, can neither be levied nor sold on
execution.
On July 31, 1984, the Provincial Sheriff of Rizal
issued to private respondents a final deed of sale 3
over the properties.
On October 22, 1984, Teofista Suarez joined by
herein petitioners filed with Branch 151 a Motion
for Reconsideration 4 of the Order dated October
10, 1984, claiming that the parcels of land are co-
owned by them and further informing the Court
the filing and pendency of an action to annul the
auction sale (Civil Case No. 51203), which motion
however, was denied.chanrobles.com:cralaw:red
On February 25, 1985, a writ of preliminary
injunction was issued enjoining private
respondents from transferring to third parties the
levied parcels of land based on the finding that the
auctioned lands are co-owned by petitioners.
On March 1, 1985, private respondent Valente
Raymundo filed in Civil Case No. 51203 a Motion
to Dismiss for failure on the part of the petitioners
to prosecute, however, such motion was later
denied by Branch 155, Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case
No. 51203 an Ex-Parte Motion to Dismiss
complaint for failure to prosecute. This was
granted by Branch 155 through an Order dated
May 29, 1986, notwithstanding petitioners
pending motion for the issuance of alias summons
to be served upon the other defendants in the said
case. A motion for reconsideration was filed but
was later denied.
On October 10, 1984, RTC Branch 151 issued in
Civil Case Nos. 21736-21739 an Order directing
Teofista Suarez and all persons claiming right
under her to vacate the lots subject of the judicial
sale; to desist from removing or alienating
improvements thereon; and to surrender to
private respondents the owners duplicate copy of
the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court
of Appeals a petition for certiorari to annul the

Orders of Branch 151 dated October 10, 1984 and
October 14, 1986 issued in Civil Case Nos. 21736-
21739.
On December 4, 1986 petitioners filed with Branch
155 a Motion for reconsideration of the Order 5
dated September 24, 1986. In an Order dated June
10, 1987, 6 Branch 155 lifted its previous order of
dismissal and directed the issuance of alias
summons.chanrobles law library : red
Respondents then appealed to the Court
of Appeals seeking to annul the orders dated
February 25, 1985, 7 May 19, 1989 8 and February
26, 1990 9 issued in Civil Case No. 51203 and
further ordering respondent Judge to dismiss Civil
Case No. 51203. The appellate court rendered
its decision on July 27, 1990, 10 the dispositive
portion of which reads:jgc:chanrobles.com.ph
"WHEREFORE, the petition for certiorari is hereby
granted and the questioned orders dated February
25, 1985, May 19, 1989 and February 26, 1990
issued in Civil Case No. 51203 are hereby annulled,
further respondent Judge is ordered to dismiss
Civil Case No. 51203." 11
Hence, this appeal.
Even without touching on the incidents and issues
raised by both petitioner and private respondents
and the developments subsequent to the filing of
the complaint, We cannot but notice the glaring
error committed by the trial court.
It would be useless to discuss the procedural issue
on the validity of the execution and the manner of
publicly selling en masse the subject properties for
auction. To start with, only one-half of the 5
parcels of land should have been the subject of the
auction sale.
The law in point is Article 777 of the Civil Code, the
law applicable at the time of the institution of the
case.
"The rights to the succession are transmitted from
the moment of the death of the
decedent."cralaw virtua1aw library
Article 888 further provides:chanrobles.com.ph :
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 87
virtual law library
"The legitime of the legitimate children and
descendants consists of one-half of the hereditary
estate of the father and of the mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of
the surviving spouse as hereinafter
provided."cralaw virtua1aw library
Article 892 par. 2 likewise
provides:jgc:chanrobles.com.ph
"If there are two or more legitimate children or
descendants, the surviving spouse shall be entitled
to a portion equal to the legitime of each of the
legitimate children or
descendants."cralaw virtua1aw library
Thus, from the foregoing, the legitime of the
surviving spouse is equal to the legitime of each
child.
The proprietary interest of petitioners in the levied
and auctioned property is different from and
adverse to that of their mother. Petitioners
became co-owners of the property not because of
their mother but through their own right as
children of their deceased father.
Therefore, petitioners are not barred in any way
from instituting the action to annul the auction
sale to protect their own interest.
WHEREFORE, the decision of the Court
of Appeals dated July 27, 1990 as well as
its Resolution of August 28, 1990 are hereby
REVERSED and set aside; and Civil Case No. 51203
is reinstated only to determine that portion which
belongs to petitioners and to annul the sale with
regard to said portion.chanrobles law library
SO ORDERED.
CASE NO. 15
[G.R. No. 126707. February 25, 1999]

BLANQUITA E. DELA MERCED, LUISITO E. DELA
MERCED, BLANQUITA M. MACATANGAY, MA.
OLIVIA M. PAREDES, TERESITA P. RUPISAN, RUBEN
M. ADRIANO, HERMINIO M. ADRIANO, JOSELITO
M. ADRIANO, ROGELIO M. ADRIANO, WILFREDO
M. ADRIANO, VICTOR M. ADRIANO, CORAZON A.
ONGOCO, JASMIN A. MENDOZA and
CONSTANTINO M. ADRIANO, petitioners,
vs. JOSELITO P. DELA MERCED, respondent.
DECISION
PURISIMA, J.:
This is a Petition for Review on Certiorari of the
Decision of the Court of Appeals, dated October
17, 1996, in CA-G.R. CV No. 41283, which reversed
the decision, dated June 10, 1992, ofthe Regional
Trial Court, Branch 67, Pasig City, in Civil Case No.
59705.
The facts of the case are, as follows:
On March 23, 1987, Evarista M. dela Merced died
intestate, without issue. She left five (5) parcels of
land situated in Orambo, Pasig City.
At the time of her death, Evarista was survived by
three sets of heirs, viz: (1) Francisco M. dela
Merced, her legitimate brother ; (2) Teresita P.
Rupisan, her niece who is the only daughter of
Rosa de la Merced-Platon (a sister who died in
1943) ; and (3) the legitimate children of Eugenia
dela Merced-Adriano (another sister of
Evarista who died in 1965), namely: Herminio,
Ruben, Joselito, Rogelio, Wilfredo, Victor and
Constantino, all surnamed Adriano, Corazon
Adriano-Ongoco and Jasmin Adriano-Mendoza.
Almost a year later or on March 19, 1988, to be
precise, Francisco (Evaristas brother) died. He was
survived by his wife Blanquita Errea dela Merced
and their three legitimate children, namely, Luisito
E. dela Merced, Blanquita M. Macatangay and Ma.
Olivia M. Paredes.
On April 20, 1989, the three sets of heirs of the
decedent, Evarista M. dela Merced, referring to
(1) the abovenamed heirs of Francisco; (2) Teresita
P. Rupisan and (3) the nine [9] legitimate children
of Eugenia, executed an extrajudicial settlement,
entitled Extrajudicial Settlement of the Estate of
the Deceased Evarista M. dela Merced adjudicating
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 88
the properties of Evarista to them, each set with a
share of one-third (1/3) pro-indiviso.
On July 26 ,1990, private respondent Joselito P.
Dela Merced , illegitimate son of the late Francisco
de la Merced, filed a Petition for Annulment of the
Extrajudicial Settlement of the Estate of the
Deceased Evarista M. Dela Merced with Prayer for
a Temporary Restraining Order, alleging that he
was fraudulently omitted from the said settlement
made by petitioners, who were fully aware of his
relation to the late Francisco. Claiming
successional rights, private respondent Joselito
prayed that he be included as one of the
beneficiaries, to share in the one-third (1/3) pro-
indiviso share in the estate of the deceased
Evarista, corresponding to the heirs of Francisco.
On August 3, 1990, the trial court issued the
temporary restraining order prayed for by private
respondent Joselito, enjoining the sale of any of
the real properties of the deceased Evarista.
After trial, however, or on June 10, 1992, to be
definite, the trial court dismissed the petition,
lifted the temporary restraining order earlier
issued, and cancelled the notice of lis pendens on
the certificates of title covering the real properties
of the deceased Evarista.
In dismissing the petition, the trial court stated:
The factual setting of the instant motion after
considering the circumstances of the entire case
and the other evidentiary facts and documents
presented by the herein parties points only to one
issue which goes into the very skeleton of the
controversy, to wit: Whether or not the plaintiff
may participate in the intestate estate of the late
Evarista M. Dela Merced in his capacity as
representative of his alleged father, Francisdo Dela
Merced, brother of the deceased, whose
succession is under consideration.
xxxxxxxxx
It is to be noted that Francisco Dela Merced,
alleged father of the herein plaintiff, is a legitimate
child, not an illegitimate. Plaintiff, on the other
hand, is admittedly an illegitimate child of the late
Francisco Dela Merced. Hence, as such, he cannot
represent his alleged father in the succession of
the latter in the intestate estate of the late

Evarista Dela Merced, because of the barrier in Art.
992 of the New Civil Code which states that:
An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives
of his father or mother, nor shall such children or
relatives inherit in the same manner from the
illegitimate child.
The application of Art. 992 cannot be ignored in
the instant case, it is clearly worded in such a way
that there can be no room for any doubts and
ambiguities. This provision of the law imposes a
barrier between the illegitimate and the legitimate
family. x x x (Rollo, p. 87-88)
Not satisfied with the dismissal of his petition, the
private respondent appealed to the Court of
Appeals.
In its Decision of October 17,1996, the Court of
Appeals reversed the decision of the trial court of
origin and ordered the petitioners to execute an
amendatory agreement which shall formpart of
the original settlement, so as to include private
respondent Joselito as a co-heir to the estate of
Francisco, which estate includes one-third (1/3)
pro indiviso of the latters inheritance fromthe
deceased Evarista.
The relevant and dispositive part of the Decision of
the Court of Appeals, reads:
xxxxxxxxx
It is a basic principle embodied in Article 777, New
Civil Code that the rights to the succession are
transmitted from the moment of the death of the
decedent, so that Francisco dela Merced inherited
1/3 of his sisters estate at the moment of the
latters death. Said 1/3 of Evaristas estate formed
part of Franciscos estate which was subsequently
transmitted upon his death on March 23, 1987 to
his legal heirs, among whom is appellant as his
illegitimate child. Appellant became entitled to his
share in Franciscos estate from the time of the
latters death in 1987. The extrajudicial settlement
therefore is void insofar as it deprives plaintiff-
appellant of his share in the estate of Francisco M.
dela Merced. As a consequence, the cancellation of
the notice of lis pendens is not in order because
the property is directly affected. Appellant has the
right to demand a partition of his fathers estate
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 89
which includes 1/3 of the property inherited from
Evarista dela Merced.
WHEREFORE, premises considered, the appealed
decision is hereby REVERSED and SET
ASIDE. Defendants-appellees are hereby ordered
to execute an amendatory agreement/settlement
to include herein plaintiff-appellant Joselito dela
Merced as co-heir to the estate of Francisco dela
Merced which includes 1/3 of the estate subject of
the questioned Deed of Extrajudicial Settlement of
the Estate of Evarista M. dela Merced dated April
20, 1989. The amendatory agreement/settlement
shall form part of the original Extrajudicial
Settlement. With costs against defendants-
appellees.
SO ORDERED. (Rollo, p. 41)
In the Petition under consideration, petitioners
insist that being an illegitimate child, private
respondent Joselito is barred from inheriting from
Evarista because of the provision of Article 992 of
the New Civil Code, which lays down an
impassable barrier between the legitimate and
illegitimate families.
The Petition is devoid of merit.
Article 992 of the New Civil Code is not applicable
because involved here is not a situation where an
illegitimate child would inherit ab intestato from a
legitimate sister of his father, which is prohibited
by the aforesaid provision of law. Rather, it is a
scenario where an illegitimate child inherits from
his father, the latters share in or portion of, what
the latter already inherited from the deceased
sister, Evarista.
As opined by the Court of Appeals, the law in point
in the present case is Article 777 of the New Civil
Code, which provides that the rights to succession
are transmitted from the moment ofdeath of
the decedent.
Since Evarista died ahead of her brother Francisco,
the latter inherited a portion of the estate of the
former as one of her heirs. Subsequently, when
Francisco died, his heirs, namely: his spouse,
legitimate children, and the private respondent,
Joselito, an illegitimate child, inherited his
(Franciscos) share in the estate of Evarista. It bears
stressing that Joselito does not claim to be an heir

of Evarista by right of representation
but participates in his own right, as an heir of the
late Francisco, in the latters share (or portion
thereof) in the estate of Evarista.
Petitioners argue that if Joselito desires to assert
successional rights to the intestate estate of his
father, the proper forum should be in the
settlement of his own fathers intestate estate, as
this Court held in the case of Gutierrez vs.
Macandog (150 SCRA 422 [1987])
Petitioners reliance on the case of Gutierrez vs.
Macandog (supra) is misplaced. The said case
involved a claim for support filed by one Elpedia
Gutierrez against the estate of the decedent,
Agustin Gutierrez, Sr., when she was not even an
heir to the estate in question, at the time, and the
decedent had no obligation whatsoever to give her
support. Thus, this Court ruled that Elpedia should
have asked for support pendente lite before the
Juvenile and Domestic Relations Court in which
court her husband (one of the legal heirs of the
decedent) had instituted a case for legal
separation against her on the ground of an
attempt against his life. When Mauricio (her
husband) died, she should have commenced an
action for the settlement of the estate of her
husband, in which case she could receive whatever
allowance the intestate court would grant her.
The present case, however, relates to the rightful
and undisputed right of an heir to the share of his
late father in the estate of the decedent Evarista,
ownership of which had been transmitted to his
father upon the death of Evarista. There is no legal
obstacle for private respondent Joselito,
admittedly the son of the late Francisco, to inherit
in his own right as an heir to his fathers estate,
which estate includes a one-third (1/3) undivided
share in the estate of Evarista.
WHEREFORE, for lack of merit, the Petition is
hereby DENIED and the Appealed Decision of the
Court of Appeals AFFIRMED in toto.
SO ORDERED.
CASE NO. 16
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 90
[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[1] of the Court of Appeals in CA-G.R.
SP No. 42053 dated January 31, 1997, as well as
its Resolution[2] dated March 26, 1997, denying
petitioners motion for reconsideration.
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.[3] 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 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[5], Alberto and
Rowena.[6]
On November 14, 1995, respondents Alfonso
James and Lourdes Orfinada discovered that on
June 29, 1995, petitioner Teodora Rioferio
and her children executed an Extrajudicial

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[10] and that the
titles thereof were delivered to her as an advance
inheritance but the decedent had managed to
register them in his name.[11] 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.[12] On
April 29, 1996, petitioners filed a Motion to Set
Affirmative Defenses for Hearing[13]on the
aforesaid ground.
The lower court denied the motion in
its Order[14] dated June 27, 1996, on the ground
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 91
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[15] but the motion was likewise
denied.[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.[17]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.[18]
The Court of Appeals rendered the
assailed Decision[19] 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.
A Motion for Reconsideration was filed by
petitioners but it was denied.[20] Hence, the
petition before this Court.
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.[22] (Emphasis supplied.)

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.[23] 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,[24] in Rule 16 thereof.
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[26] and Section 2, Rule 87[27] of the Rules of
Court. In fact, in the case of Gochan v.
Young,[28] 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:
[29]
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
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 92
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.
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;[30] and (2) when the
administrator is alleged to have participated in the
act complained of[31] and he is made a party
defendant.[32] 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.
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.
CASE NO. 17
G.R. No. L-55076 September 21, 1987
MATILDE S. PALICTE, petitioner,
vs.
HON. JOSE O. RAMOLETE as Presiding Judge of
Court of First Instance of Cebu, Branch III, and
MARCELO SOTTO, Administrator, respondents.
GUTIERREZ, JR., J.:

This is a petition for review on certiorari of the
order of the then Court of First Instance of Cebu
declaring the deed of redemption executed for the
petitioner null and void and denying the
petitioner's motion that the Registrar of Deeds of
the City of Cebu be directed to transfer the
Owner's Duplicate Certificates of Title to Lot Nos.
1049, 1051, and 1052 from Filemon Sotto to her
and to issue a new Owner's Duplicate Certificate of
Title to Lot 2179-C in her name.
On July 5, 1979, a sale at public auction was held
pursuant to a writ of execution issued on February
5, 1979 by the respondent judge and to a court
order dated June 4, 1979 in the case of Pilar Teves,
et al. vs Marcelo Sotto, Administrator, Civil Case
No. R-10027, for the satisfaction of judgment in
the amount of P725,270.00.
The following properties belonging to the late Don
Filemon Sotto and administered by respondent
Marcelo Sotto were levied upon:
1. Parcel of land on Lot No. 1049, covered by TCT
No. 27640 of the Banilad Friar Lands Estate, Cebu
City;
2. Parcel of land on Lot No. 1052, covered by TCT
No. 27642 of the Banilad Friar Lands Estate, Cebu
City;
3. Parcel of land on Lot No. 1051,covered by TCT
No. 27641 of the Banilad Friad Lands Estate, Cebu
City;
4. Parcel of land on Lot No. 5253 of the Cebu
Cadastre, Cebu City, covered by TCT No. 27639;
5. Parcel of land situated at Mantalongon,
Dalaguete, Cebu, covered by TD No. 010661, with
an area of 76-708; (sic)
6. Parcel of land on Lot No. 4839 of the Upon
Cadastre, at Barrio Sa-ac Mactan Island, with an
area of Forty Four Thousand Six Hundred Forty
Four (44,644) square meters more or less;
7. Residential House of strong materials, situated
on a Government lot at Lahug, Cebu City;
8. Residential House of strong materials, situated
at Central, Cebu City. " (Rollo, p. 40)
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 93
Seven of the above-described properties were
awarded to Pilar Teves, who alone bid for them for
the amount of P217,300.00.
The residential house situated on a government lot
at Lahug, Cebu City, was awarded to lone bidder
Asuncion Villarante for the amount of P10,000.00.
Within the period for redemption, petitioner
Matilde S. Palicte, as one of the heirs of the late
Don Filemon Sotto, redeemed from purchaser Pilar
Teves, four (4) lots for the sum of P60,000.00.
A deed of redemption dated July 29, 1980,
executed by Deputy Provincial Sheriff Felipe V.
Belandres and approved by the Clerk of Court,
Esperanza Garcia as Ex-Officio Sheriff, was issued
for these lots:
1. A parcel of land or Lot No. 2179-C-PDI-25027
Cebu Cadastre, Cebu City, bid at P20,000.00;
2. A parcel of land or Lot No. 1052, covered by TCT
No. 27642, of the Banilad Friar Lands Estate, Cebu
City, bid at P15,000.00;
3. A parcel of land or Lot No.1051,covered by TCT
No. 27641, of the Banilad Friar Lands Estate, Cebu
City, at P5,000.00;
4. A parcel of land or Lot No. 1049, covered by TCT
No. 27640, of the Banilad Friar Lands Estate, Cebu
City, at P20,000.00. (Rollo, p. 42)
On July 24, 1980, petitioner Palicte filed a motion
with respondent Judge Ramolete for the transfer
to her name of the titles to the four (4) parcels of
land covered by the deed of redemption.
This motion was opposed by the plaintiffs in Civil
Case No. R-10027, entitled "Pilar Teves, et al. vs
Marcelo Sotto, administrator" on several grounds,
principal among which, is that movant, Palicte, is
not one of those authorized to redeem under the
provisions of the Rules of Court.
A hearing on the said motion, with both parties
adducing evidence was held.
The lower court held that although Palicte is one of
the declared heirs in Spl. Proc. No. 2706-R, she
does not qualify as a successor-in-interest who
may redeem the real properties sold. It ruled that
the deed of redemption is null and void. The
motion of Palicte was denied.

Hence, the present petition.
The petitioner raises the following assignment of
errors:
A interest in the whole or any part of the property;
RESPONDENT JUDGE ERRED IN RULING THAT THE
JUDGMENT DEBTOR ENTITLED TO REDEEM UNDER
SECTION 29(a), RULE 39 OF THE REVISED RULES OF
COURT REAL PROPERTY SOLD ON EXECUTION
AGAINST THE ESTATE OF THE DECEDENT IS ONLY
THE ADMINISTRATOR OF THE ESTATE, OR HIS
SUCCESSOR-IN-INTEREST.
B debtor or his successor-in-interest in the whole or
RESPONDENT JUDGE ERRED IN RULING THAT
PETITIONER, WHO IS A DECLARED HEIR OF THE
DECEDENT, IS NOT THE JUDGMENT DEBTOR NOR
DOES SHE QUALIFY AS A SUCCESSOR-IN-INTEREST
OF THE ADMINISTRATOR OF THE ESTATE ENTITLED
TO RIGHT OF REDEMPTION UNDER SECTION 29(a),
RULE 39 OF THE RULES OF COURT.
C vs Cochran, 276 Fed., 216, 223); one to whom the
RESPONDENT JUDGE ERRED IN RULING THAT
ALTHOUGH PETITIONER IS A DECLARED HEIR OF
THE DECEDENT, HER RIGHT TO THE ESTATE, LIKE
THAT OF REDEMPTION OF CERTAIN ESTATE
PROPERTY, COULD ONLY ARISE AFTER
DISTRIBUTION OF THE ESTATE AS THERE IS STILL
JUDGMENT DEBT CHARGEABLE AGAINST THE
ESTATE.
D vs. Yosemite Gold Min. etc. Co., 149 Cal., 50; 85
RESPONDENT JUDGE ERRED IN RULING THAT
PETITIONER'S REDEMPTION OF FOUR (4) PARCELS
OF LAND OF THE ESTATE OF THE DECEDENT SOLD
ON EXECUTION OF JUDGMENT AGAINST THE
ESTATE IS NULL AND VOID AND INEFFECTIVE.
(Rollo, pp. 17-18)
These assigned errors center on whether or not
petitioner Palicte may validly exercise the right of
redemption under Sec. 29, Rule 39 of the Rules of
Court.
We answer in the affirmative. Sec. 29 of Rule 39
provides:
SEC. 29. Who may redeem real property so sold.
Real property sold as provided in the last
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 94
preceding section, or any part thereof sold
separately, may be redeemed in the manner
hereinafter provided, by the following persons:
(a) The judgment debtor, or his successor in
(b) A creditor having a lien by attachment,
judgment or mortgage on the property sold, or on
some part thereof, subsequent to the judgment
under which the property was sold. Such
redeeming creditor is termed a redemptioner.
Under Subsection (a), property sold subject to
redemption may be redeemed by the judgment
any part of the property. Does Matilde Palicte fall
within the term "successor-in-interest"?
Magno vs Viola and Sotto (61 Phil. 80, 84-85)
states that:
The rule is that the term "successor-in-interest"
includes one to whom the debtor has transferred
his statutory right of redemption (Big Sespe Oil Co.
debtor has conveyed his interest in the property
for the purpose of redemption (Southern California
Lumber Co. vs. McDowell, 105 Cal, 99; 38 Pac., 627;
Simpson vs. Castle, 52 Cal., 644; Schumacher vs.
Langford, 20 Cal. App., 61; 127 Pac., 1057); one
who succeeds to the interest of the debtor by
operation of law (XI McKinney's California
Jurisprudence, 99); one or more joint debtors who
were joint owners of the property sold (Emerson
Pac., 122); the wife as regards her husband's
homestead by reason of the fact that some portion
of her husband' title passes to her (Hefner vs.
Urton, 71 Cal., 479; 12 Pac., 486). This court has
held that a surety can not redeem the property of
the principal sold on execution because the surety,
by paying the debt of the principal, stands in the
place of the creditor, not of the debtor, and
consequently is not a successor in interest in the
property. (G. Urruitia & Co. vs. Moreno and Reyes,
28 Phil., 260, 268). (Emphasis supplied).
In the case at bar, petitioner Palicte is the
daughter of the late Don Filemon Sotto whose
estate was levied upon on execution to satisfy the
money judgment against it. She is one of the
declared heirs in Special Proceeding No. 2706-R. As

a legitimate heir, she qualifies as a successor-in-
interest.
Art. 777 of the Civil Code states that:
The rights to the succession are transmitted from
the moment of the death of the decedent.
At the moment of the decedent's death, the heirs
start to own the property, subject to the
decedent's liabilities. In fact, they may dispose of
the same even while the property is under
administration. (Barretto vs. Tuason, 59 Phil. 845;
Jakosalem vs. Rafols, 73 Phil. 628). If the heirs may
dispose of their shares in the decedent's property
even while it is under administration. With more
reason should the heirs be allowed to redeem
redeemable properties despite the presence of an
administrator.
The respondents contend that the petitioner must
positively prove that the three other co-heirs, the
administrator, and the intestate court had
expressly agreed to the redemption of the
disputed parcels of land. We see no need for such
prior approval. While it may have been desirable,
it is not indispensable under the circumstances of
this case. What is important is that all of them
acquiesced in the act of redeeming property for
the estate. The petitioner contends that the
administrator and the three other heirs agreed to
the redemption. There is, however. no clear proof
of such approval. What is beyond dispute from the
records is that they did not disapprove nor
reprobate the acts of the petitioner. There is
likewise nothing in the records to indicate that the
redemption was not beneficial to the estate of Don
Filemon Sotto.
It may be true that the interest of a specific heir is
not yet fixed and determinate pending the order of
distribution but, nonetheless, the heir's interest in
the preservation of the estate and the recovery of
its properties is greater than anybody else's,
definitely more than the administrator's who
merely holds it for the creditors, the heirs, and the
legatees.
The petitioner cites precedents where persons
with inchoate or contingent interest were allowed
to exercise the right of redemption as "successors-
in-interest," e.g. Director of Lands vs.
Lagniton (103 Phil. 889, 892) where a son
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 95
redeemed the property of his parents sold on
execution and Rosete vs. Provincial Sheriff of
Zambales (95 Phil. 560, 564), where a wife by
virtue of what the Court called "inchoate right of
dower or contingent interest" redeemed a
homestead as successor-in-interest of her
husband.
In fact, the Court was explicit in Lagniton that:
... The right of a son, with respect to the property
of a father or mother, is also an inchoate or
contingent interest, because upon the death of the
father or the mother or both, he will have a right
to inherit said conjugal property. If any holder of
an inchoate interest is a successor in interest with
right to redeem a property sold on execution, then
the son is such a successor in interest, as he has an
inchoate right to the property of his father.
The lower court, therefore, erred in considering
the person of the administrator as the judgment
debtor and as the only "successor-in-interest." The
estate of the deceased is the judgment debtor and
the heirs who will eventually acquire that estate
should not be prohibited from doing their share in
its preservation.
Although petitioner Palicte validly redeemed the
properties, her motion to transfer the titles of the
four (4) parcels of land covered by the Deed of
Redemption from registration in the name of
Filemon Sotto to her name cannot prosper at this
time.
Otherwise, to allow such transfer of title would
amount to a distribution of the estate.
As held in the case of Philippine Commercial and
Industrial Bank vs. Escolin (56 SCRA 267, 345- 346):
Indeed, the law on the matter is specific,
categorical and unequivocal. Section 1 of Rule 90
provides:
SECTION 1. When order for distribution of residue
made. When the debts, funeral charges, and
expenses of administration, the allowance to the
widow, and inheritance tax, if any, chargeable to
the estate in accordance with law, have been paid,
the court, on the application of the executor or
administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign
the residue of the estate to the persons entitled to

the same, naming them and the proportions, or
parts, to which each is entitled, and such persons
may demand and recover their respective shares
from the executor or administrator, or any other
person having the same in his possession. If there
is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled
under the law, the controversy shall be heard and
decided as in ordinary cases.
No distribution shall be allowed until the payment
of the obligations above mentioned has been
made or provided for, unless the distributees, or
any of them, give a bond, in a sum to be fixed by
the court, conditioned for the payment of said
obligations within such time as the court directs.
These provisions cannot mean anything less than
that in order that a proceeding for the settlement
of the estate of a deceased may be deemed ready
for final closure, (1) there should have been issued
already an order of distribution or assignment of
the estate of the decedent among or to those
entitled thereto by will or by law, but (2) such
order shall not be issued until after it is shown that
the "debts, funeral expenses, expenses of
administration, allowances, taxes, etc., chargeable
to the estate" have been paid, which is but logical
and proper, (3) besides, such an order is usually
issued upon proper and specific application for the
purpose of the interested party or parties, and not
of the court."
The other heirs are, therefore, given a six months
period to join as co-redemptioners in the
redemption made by the petitioner before the
motion to transfer titles to the latter's name may
be granted.
WHEREFORE, the petition is hereby GRANTED. The
respondent court's orders declaring the deed of
redemption null and void and denying the motion
to transfer title over the redeemed properties to
Matilda Palicte are REVERSED and SET ASIDE,
subject to the right of the other heirs to join in the
redemption as stated above.
SO ORDERED.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 96
CASE NO. 18
G.R. No. L-10806 July 6, 1918
MONICA BONA, petitioner-appellant,
vs.
HOSPICIO BRIONES, ET AL., objectors-appellees.
Ramon Pimentel for appellant.
Ocampo and De la Rosa for appellees.
TORRES, J.:
Counsel for Monica Bona, the widow by the
second marriage of the deceased Francisco Briones
who died on August 14, 1913, applied for the
probate of the will which the said deceased
husband on September 16, 1911, executed during
his lifetime; for the fixing of a day for the hearing
and presentation of evidence after all the
interested parties had been cited; and then for the
approval of the partition had been cited; and then
for the approval of the partition property made by
the testator in the said will. By an order dated
January 20, 1915, Monica Bona's petition was
granted and a date set for the trial and other
necessary proceedings for the probate of said will.
Counsel for Hospicio, Gregoria, and Carmen, all
surnamed Briones, the legitimate children by the
first marriage of the testator, by a pleading dated
March 5, 1915, opposed the probate of the will
presented by the widow of the deceased Briones,
alleging that the said will was executed before two
witnesses only and under unlawful and undue
pressure or influence exercised upon the person of
the testator who thus signed through fraud and
deceit; and he prayed that for that reason the said
will be declared null and of no value, with costs
against the petitioners.
The trial of the case opened and in the presence of
counsel for both parties, Gregorio Bustilla, one of
the witnesses of the said will, was examined and
he stated under oath: That he as well as Sixto
Barrameda and Domingo de la Fuente, was
actually present as attesting witness when
Francisco Briones executed his will in the month of
September in his (Bustilla's) house situated in the
municipality of Bao, Ambos Camarines; that
Francisco Briones knowing of the presence of
notary Domingo de la Fuente in the house, he
went upstairs and announced himself; that on

being asked what he wanted, Briones stated that
he wanted to execute his will; that after Briones
and the notary had talked with each other, the
former left and after a while returned bringing
with him some paper; that then Domingo de la
Fuente, under the direction of Francisco Briones,
began to draft the will, which when finished was
signed by the latter in the presence of the notary,
of the declarant, and of another witness, Sixto
Barrameda; that then the three witnesses the
declarant, de la Fuente, and Barrameda signed
in the presence of each other. The declarant
identified the signature placed on the will by the
testator Briones and those of the other witnesses
Sixto Barrameda and Domingo dela Fuente, who
all signed in the presence of the testator himself.
He stated further that the testator at that moment
was in his sound judgment and not forced to
execute the will. He identified the document
Exhibit A as the will executed by Francisco Briones
and the signature of the latter as the one placed by
the testator. By agreement of both parties it was
made to appear in the record that, if the witnesses
Sixto Barrameda and Domingo de la Fuente were
called, they would have testified in the same terms
as witness Gregorio Bustilla.
In view of the above, the judge rendered
judgment, dated March 27, 1915, denying probate
to the will Exhibit A as executed by Francisco
Briones. From the judgment, counsel for Monica
Bona appealed and prayed to be allowed to sue
further as a pauper; whereupon, by order of March
31, 1915, the judge admitted the appeal, ordered
the original records to be brought up, and
reiterated his order of December 28, 1913,
declaring Bona as a pauper, for the purposes of the
appeal interposed.
The whole issue discussed by the parties and
submitted for the decision of this court resolves
itself as to whether or not in the execution of the
will in question the solemnities prescribed by
section 618 of Act No. 190 have been observed.
But before proceeding further it is indispensable to
note that the will in question was executed by
Francisco Briones on September 16, 1911, as
already stated and the order denying probate was
rendered on March 27, 1915, both dated being
prior to that of Act No. 2645 amending said section
618 and promulgated on February 24, 1916, which
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 97
took effect only from July first of the last named
year: so that, in order to explain whether or not
the above-mentioned will was executed in
accordance with the law then in force, the last
named law cannot be applied and the will in
question should be examined in accordance with,
and under the rules of, the law in force at the time
of its execution.
The oft-repeated section 618 of Act No. 190 says:
No will, except as provided in the preceding
section, shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless it
be in writing and signed by the testator, or by
some other person in his presence, and by his
express direction, and attested and subscribed by
three or more credible witnesses in the presence
of the testator and of each other. But the absence
of such form of attestation shall not render the will
invalid if it is proven that the will was in fact
signed and attested as in this section provided.
A mere reading of the last four paragraphs or parts
of the will Exhibit A shows in a clear manner that
the said will in its form and contents expresses
without shadow of doubt the will of the testator;
and that in its execution the solemnities
prescribed by the above-mentioned section 618 of
Act No. 190 have been observed.
Even though Domingo de la Fuente drafted the will
and intervened in its preparation as a notary, by
the order and under the express direction of the
testator, it is nevertheless true that he did it as a
witness to the execution of the said will with
positive and concrete acts, while the two other
witnesses Gregorio Bustilla and Sixto Barrameda
merely attested all that appeared in the second of
the four paragraphs mentioned; for in its they
certify that the foregoing testament contains the
last will of the testator Francisco Briones; that the
latter told them that before and at the time that
he dictated his will, there was no inducement nor
threat by anybody; and that as he did not know
how to write the Spanish language, said testator
requested Domingo de la Fuente to write the will,
and he did it as it is now drafted, certifying also,
that the testator Briones signed his will voluntarily
with his own hand, in the presence of the
declarants who, as witnesses, signed the
instrument on the date expressed. Domingo de la

Fuente on his part declared that the two said
witnesses formally swore before him on the
certification which precedes the said will and,
according to this testimony as shown in the
records and the testimony of the above-mentioned
witnesses, the said Domingo de la Fuente wrote
and drafted the said will Exhibit A by the order and
under the direction of the testator Francisco
Briones, who signed in the presence of the
witnesses, Bustilla and Barrameda and of Notary
Domingo de la Fuente, all of whom immediately
signed also in the presence of the testator, each
doing it in the presence of each other. So that,
although it is not shown expressly that Domingo
de la Fuente was an attesting witness to the will,
yet it cannot be denied that it was he who wrote it
by the order and under the direction of the
testator; that he was a witness to its execution
from the first to its last line; and that he was
perfectly aware of the fact that all that he had
written in the document Exhibit A expresses the
genuine and true will of the testator. He saw and
was present when the latter signed his will, as also
when the two witnesses Bustilla and Barrameda
affixed their signatures; said witnesses also saw
and were present when Domingo de la Fuente
signed at the end of the said document.
The name of Domingo de la Fuente appears as that
of a notary who certifies as to the certainty of the
will made by Francisco Briones and of the
signatures of the testator as well as of the
witnesses at its end; and as the law does not
require that one of the witnesses must necessarily
be a notary, and it cannot be denied that Domingo
de la Fuente attested the execution and the
signing of the will not only by the testator but also
by the attesting witnesses, it cannot but be
admitted that Domingo de la Fuente intervened,
attested, and signed the testament as a witness.
This is a case in which the judicial criterion should
be inspired in the sense that it is not defeated, and
if the wish of the testator is so manifest and
express as in the instant case, it is not proper nor
just to invalidate the will of Francisco Briones
merely because of some small defect in form
which is not essential nor of great importance,
such as the failure to state therein that Domingo
de la Fuente was also a witness to the said will
when he signed it twice. As a matter of act, he
understood the contents of the will better than the
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 98
two other attesting witnesses, for he really was a
witness and he attested the execution of the will
during its making until it was terminated and
signed by the testator, by the witnesses, and by
himself, even though he did it in the capacity of a
notary.
The last paragraph of section 618 of Act No. 190
supplies a legal basis to support the validity of the
will in question with the conditions for its probate
because, notwithstanding the existence of such
defect merely in the form and not in the
substance, the certification of authenticity and the
very text of the will show in a clear and
indubitable manner that the will Exhibit A contains
the last will of the testator, and that it was signed
by the latter and attested as being true and
legitimate not only the two witnesses Bustilla and
Barrameda but also by the one who wrote it,
Domingo de la Fuente, who was also a truthful and
reliable witness, even though he be called a notary
public.
The requisites established by Act No. 2645, which
amended the oft-repeated section 618 cannot be
required in the probate of the will here, inasmuch
as this document was executed in September,
1911, five years before said amendatory law began
to take effect (July 1, 1916), while the testator died
on August 14, 1913, two years and some months
before the enforcement of the said law; and so,
the only law applicable to the present case is the
provision contained in section 618 of Act No. 190,
and in accordance with the provisions of this
section, the said will should be probated; for it has
been presented to the court many months before
the amendatory act went into effect.
It is well-known that the principle that a new law
shall not have retroactive effect only governs the
rights arising from acts done under the rule of the
former law; but if the right be declared for the first
time by a subsequent law it shall take effect from
that time even though it has arisen from acts
subject to the former laws, provided that it does
not prejudice another acquired right of the same
origin.
It is well-known that hereditary rights are not born
nor does the will produce any effect until the
moment of the death of the person whose
inheritance is concerned. (Decision rendered in

cassation by the supreme court of Spain on June
24, 1897.)
In view of these facts, it follows that the judgment
appealed from should be reversed and it should be
declared as we hereby declare that the will Exhibit
A has been executed in due form by Francisco
Briones on September 16, 1911, and that the said
will contains and expresses the last will and
testamentary wishes of the deceased testator.
Consequently, let the records be returned to the
court wherefrom they came with a certified copy
of this resolution in order that the judge, upon
petition by the proper party, may provide for the
necessary proceedings with respect to the
inheritance, and the clerk of the court may issue
certified copies of the said testament; without any
special ruling as to costs. so ordered.
CASE NO. 19
G.R. No. L-14074 November 7, 1918
In the matter of the probation of the will of Jose
Riosa.
MARCELINO CASAS, applicant-appellant,
Vicente de Vera for petitioner-appellant.
MALCOLM, J.:
The issue which this appeal presents is whether in
the Philippine Islands the law existing on the date
of the execution of a will, or the law existing at the
death of the testator, controls.
Jose Riosa died on April 17, 1917. He left a will
made in the month of January, 1908, in which he
disposed of an estate valued at more than
P35,000. The will was duly executed in accordance
with the law then in force, namely, section 618 of
the Code of Civil Procedure. The will was not
executed in accordance with Act No. 2645,
amendatory of said section 618, prescribing certain
additional formalities for the signing and
attestation of wills, in force on and after July 1,
1916. In other words, the will was in writing,
signed by the testator, and attested and
subscribed by three credible witnesses in the
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 99
presence of the testator and of each other; but
was not signed by the testator and the witnesses
on the left margin of each and every page, nor did
the attestation state these facts. The new law,
therefore, went into effect after the making of the
will and before the death of the testator, without
the testator having left a will that conforms to the
new requirements.
Section 618 of the Code of Civil Procedure reads:
No will, except as provided in the preceding
section, shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless it
be in writing and signed by the testator, or by the
testator's name written by some other person in
his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of
each other. The attestation shall state the fact that
the testator signed the will, or caused it to be
signed by some other person, at his express
direction, in the presence of three witnesses, and
that they attested and subscribed it in his presence
and in the presence of each other. But the absence
of such form of attestation shall not render the will
invalid if it is proven that the will was in fact
signed and attested as in this section provided.
Act No. 2645 has amended section 618 of the Code
of Civil Procedure so as to make said section read
as follows:
SEC. 618. Requisites of will. No will, except as
provided in the preceding section, shall be valid to
pass any estate, real or personal, nor charge or
affect the same, unless it be written in the
language or dialect known by the testator and
signed by him, or by the testator's name written
by some other person in his presence, and by his
express direction, and attested and subscribed by
three or more credible witnesses in the presence
of the testator and of each other. The testator or
the person requested by him to write his name
and the instrumental witnesses of the will, shall
also sign, as aforesaid, each, and every page
thereof, on the left margin, and said pages shall be
numbered correlatively in letters placed on the
upper part of each sheet. The attestation shall
state the number of sheets or pages used, upon
which the will is written, and the fact that the
testator signed the will and every page thereof, or

caused some other person to write his name,
under his express direction, in the presence of
three witnesses, and the latter witnessed and
signed the will and all pages thereof in the
presence of the testator and of each other.
This court has heretofore held in a decision handed
down by the Chief Justice, as to a will made after
the date Act No. 2645 went into effect, that it must
comply with the provisions of this law. (Caraig vs
Tatlonghari, R. G. No. 12558, dated March 23, 1918
[not published].) The court has further held in a
decision handed down by Justice Torres, as to will
executed by a testator whose death took place
prior to the operative date of Act No. 2645, that
the amendatory act is inapplicable.
(Bona vs. Briones, [1918], 38 Phil., 276.) The
instant appeal presents an entirely different
question. The will was execute prior to the
enactment of Act No. 2645 and the death occurred
after the enactment of this law.
There is a clear cleavage of authority among the
cases and the text-writers, as to the effect of a
change in the statutes prescribing the formalities
necessary to be observed in the execution of a will,
when such change is made intermediate to the
execution of a will and the death of a testator.
(See generally 40 Cyc., 1076. and any textbook on
Wills, and Lane's Appeal from Probate [1889], 57
Conn., 182.) The rule laid down by the courts in
many jurisdictions is that the statutes in force at
the testator's death are controlling, and that a will
not executed in conformity with such statutes is
invalid, although its execution was sufficient at the
time it was made. The reasons assigned for
applying the later statute are the following: "As
until the death of the testator the paper executed
by him, expressing his wishes, is not a will, but a
mere inchoate act which may or may not be a will,
the law in force at the testator's death applies and
controls the proof of the will." (Sutton vs. Chenault
[1855], 18 Ga., 1.) Were we to accept the foregoing
proposition and the reasons assigned for it, it
would logically result that the will of Jose Riosa
would have to be held invalid.
The rule prevailing in many other jurisdictions is
that the validity of the execution of a will must be
tested by the statutes in force at the time of its
execution and that statutes subsequently enacted
have no retrospective effect. This doctrine is
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 100
believed to be supported by the weight of
authority. It was the old English view; in Downs (or
Downing) vs. Townsend (Ambler, 280), Lord
Hardwicke is reported to have said that "the
general rule as to testaments is, that the time of
the testament, and not the testator's death, is
regarded." It is also the modern view, including
among other decisions one of the Supreme Court
of Vermont from which State many of the sections
of the Code if Civil Procedure of the Philippine
Islands relating to wills are taken.
(Giddings vs. Turgeon [1886], 58 Vt., 103.)
Of the numerous decisions of divergent
tendencies, the opinion by the learned Justice
Sharswood (Taylor vs.Mitchell [1868], 57 Pa. St.,
209) is regarded to be the best considered. In this
opinion is found the following:
Retrospective laws generally if not universally
work injustice, and ought to be so construed only
when the mandate of the legislature is imperative.
When a testator makes a will, formally executed
according to the requirements of the law existing
at the time of its execution, it would unjustly
disappoint his lawful right of disposition to apply
to it a rule subsequently enacted, though before
his death.
While it is true that every one is presumed to
know the law, the maxim in fact is inapplicable to
such a case; for he would have an equal right to
presume that no new law would affect his past act,
and rest satisfied in security on that presumption. .
. . It is true, that every will is ambulatory until the
death of the testator, and the disposition made by
it does not actually take effect until then. General
words apply to the property of which the testator
dies possessed, and he retains the power of
revocation as long as he lives. The act of
bequeathing or devising, however, takes place
when the will is executed, though to go into effect
at a future time.
A third view, somewhat larger in conception than
the preceding one, finding support in the States of
Alabama and New York, is that statutes relating to
the execution of wills, when they increase the
necessary formalities, should be construed so as
not to impair the validity of a will already made
and, when they lessen the formalities required,
should be construed so as to aid wills defectively

executed according to the law in force at the time
of their making (Hoffman vs. Hoffman, [1855], 26
Ala., 535; Price vs. Brown, 1 Bradf., Surr. N.Y., 252.)
This court is given the opportunity to choose
between the three rules above described. Our
selection, under such circumstances, should
naturally depend more on reason than on
technicality. Above all, we cannot lose sight of the
fact that the testator has provided in detail for the
disposition of his property and that his desires
should be respected by the courts. Justice is a
powerful pleader for the second and third rules on
the subject.
The plausible reasoning of the authorities which
back the first proposition is, we think, fallacious.
The act of bequeathing or devising is something
more than inchoate or ambulatory. In reality, it
becomes a completed act when the will is
executed and attested according to the law,
although it does not take effect on the property
until a future time.lawphil.net
It is, of course, a general rule of statutory
construction, as this court has said, that "all
statutes are to be construed as having only a
prospective operation unless the purpose and
intention of the Legislature to give them a
retrospective effect is expressly declared or is
necessarily implied from the language used. In
every case of doubt, the doubt must be resolved
against the restrospective effect."
(Montilla vs. Corporacion de PP. Agustinos [1913],
24 Phil., 220. See also Chew Heong vs. U.S. [1884],
112 U.S., 536; U.S. vs American Sugar Ref. Co.
[1906], 202 U.S., 563.) Statute law, as found in the
Civil Code, is corroborative; article 3 thereof
provides that "laws shall not have a retroactive
effect, unless therein otherwise prescribed." The
language of Act No. 2645 gives no indication of
retrospective effect. Such, likewise, has been the
uniform tendency of the Supreme Court of the
Philippine Islands on cases having special
application to testamentary succession.
(Abello vs. Kock de Monaterio [1904], 3 Phil., 558;
Timbol vs. Manalo [1906], 6 Phil., 254;
Bona vs. Briones, supra; In the Matter of the
Probation of the Will of Bibiana Diquia [1918], R.
G. No. 13176, 1 concerning the language of the
Will. See also section 617, Code of Civil Procedure.)
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 101
The strongest argument against our accepting the
first two rules comes out of section 634 of the
Code of Civil Procedure which, in negative terms,
provides that a will shall be disallowed in either of
five cases, the first being "if not executed and
attested as in this Act provided." Act No. 2645 has,
of course, become part and parcel of the Code of
Civil Procedure. The will in question is admittedly
not executed and attested as provided by the Code
of Civil Procedure as amended. Nevertheless, it is
proper to observe that the general principle in the
law of wills inserts itself even within the provisions
of said section 634. Our statute announces a
positive rule for the transference of property
which must be complied with as completed act at
the time of the execution, so far as the act of the
testator is concerned, as to all testaments made
subsequent to the enactment of Act No. 2645, but
is not effective as to testaments made antecedent
to that date.
To answer the question with which we began this
decision, we adopt as our own the second rule,
particularly as established by the Supreme Court of
Pennsylvania. The will of Jose Riosa is valid.
The order of the Court of First Instance for the
Province of Albay of December 29, 1917,
disallowing the will of Jose Riosa, is reversed, and
the record shall be returned to the lower court
with direction to admit the said will to probate,
without special findings as to costs. So ordered.
CASE NO. 20
G.R. No. 4445 September 18, 1909
CATALINA BUGNAO, proponent-appellee,
vs.
FRANCISCO UBAG, ET AL., contestants-appellants.
Rodriguez and Del Rosario for appellants.
Fernando Salas for appellee.
CARSON, J.:
This is an appeal from an order of the Court of First
Instance of Oriental Negros, admitting to probate a
document purporting to be the last will and
testament of Domingo Ubag, deceased. The
instrument was propounded by his widow,
Catalina Bugnao, the sole beneficiary thereunder,

and probate was contested by the appellants, who
are brothers and sisters of the deceased, and who
would be entitled to share in the distribution of his
estate, if probate were denied, as it appears that
the deceased left no heirs in the direct ascending
or descending line.
Appellants contend that the evidence of record is
not sufficient to establish the execution of the
alleged will in the manner and form prescribed in
section 618 of the Code of Civil Procedure; and
that at the time when it is alleged that the will was
executed, Ubag was not of sound mind and
memory, and was physically and mentally
incapable of making a will.
The instrument propounded for probate purports
to be the last will and testament of Domingo Ubag,
signed by him in the presence of three subscribing
and attesting witnesses, and appears upon its face
to have been duly executed in accordance with the
provisions of the Code of Civil Procedure touching
the making of wills.
Two of the subscribing witnesses, Victor J. Bingtoy
and Catalino Mario, testified in support of the
will, the latter being the justice of the peace of the
municipality wherein it was executed; and their
testimony was corroborated in all important
details by the testimony of the proponent herself,
who was present when the will was made. It does
not appear from the record why the third
subscribing witness was not called; but since
counsel for the contestants makes no comment
upon his absence, we think it may safely be
inferred that there was some good and sufficient
reason therefore. In passing, however, it may be
well to observe that, when because of death,
sickness, absence, or for any other reason, it is not
practicable to call to the witness stand all the
subscribing witnesses to a will offered for probate,
the reason for the absence of any of these
witnesses should be made to appear of record, and
this especially in cases such as the one at bar,
wherein there is a contests.
The subscribing witnesses gave full and detailed
accounts of the execution of the will and swore
that the testator, at the time of its execution, was
of sound mind and memory, and in their presence
attached his signature thereto as his last will and
testament, and that in his presence and in the
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 102
presence of each other, they as well as the third
subscribing witness. Despite the searching and
exhaustive cross-examination to which they were
subjected, counsel for appellants could point to no
flaw in their testimony save an alleged
contradiction as to a single incident which
occurred at or about the time when the will was
executed a contradiction, however, which we think
is more apparent than real. One of the witnesses
stated that the deceased sat up in bed and signed
his name to the will, and that after its execution
food was given him by his wife; while the other
testified that he was assisted into a sitting
position, and was given something to eat before
he signed his name. We think the evidence
discloses that his wife aided the sick man to sit up
in bed at the time when he signed his name to the
instrument, and that he was given nourishment
while he was in that position, but it is not quite
clear whether this was immediately before or
after, or both before and after he attached his
signature to the will. To say that the sick man sat
up or raised himself up in bed is not necessarily in
conflict with the fact that he received assistance in
doing so; and it is not at all improbable or
impossible that nourishment might have been
given to him both before and after signing the will,
and that one witness might remember the former
occasion and the other witness might recall the
latter, although neither witness could recall both.
But, however this may have been, we do not think
that a slight lapse of memory on the part of one or
the other witness, as to the precise details of an
unimportant incident, to which his attention may
not have been particularly directed, is sufficient to
raise a doubt as to the veracity of these witnesses,
or as to the truth and accuracy of their recollection
of the fact of the execution of the instrument. Of
course, a number of contradictions in the
testimony of alleged subscribing witnesses to a will
as to the circumstances under which it was
executed, or even a single contradiction as to a
particular incident, where the incident was of such
a nature that the intention of any person who was
present must have been directed to it, and where
the contradictory statements in regard to it are so
clear and explicit as to negative the possibility or
probability of mistake, might well be sufficient to
justify the conclusion that the witnesses could not
possibly have been present, together, at the time
when it is alleged the will was executed; but the

apparent contradictions in the testimony of the
witnesses in the case at bar fall far short of raising
a doubt a to their veracity, and on the other hand
their testimony as a whole gives such clear,
explicit, and detailed account of all that occurred,
and is so convincing and altogether satisfactory
that we have no doubt that the trial judge who
heard them testify properly accepted their
testimony as worthy of entire confidence and
belief.
The contestants put upon the stand four witnesses
for the purpose of proving that at the time and on
the occasion when the subscribing witnesses
testified that the will was executed, these
witnesses were not in the house with the testator,
and that the alleged testator was at that time in
such physical and mental condition that it was
impossible for him to have made a will. Two of
these witnesses, upon cross-examination,
admitted that they were not in the house at or
between the hours of four and six in the afternoon
of the day on which the will is alleged to have
been made, this being the time at which the
witnesses in support of the will testified that it was
executed. Of the other witnesses, one is a
contestant of the will, Macario Ubag, a brother of
the testator, and the other, Canuto Sinoy, his close
relative. These witnesses swore that they were in
the house of the deceased, where he was lying ill,
at or about the time when it is alleged that the will
was executed, and that at that time the alleged
subscribing witnesses were not in the house, and
the alleged testator was so sick that he was unable
to speak, to understand, or to make himself
understood, and that he was wholly incapacitated
to make a will. But the testimony of Macario Ubag
is in our opinion wholly unworthy of credence. In
addition to his manifest interest in the result of the
investigation, it clearly discloses a fixed and settled
purpose to overthrow the will at all costs, and to
that end an utter disregard of the truth, and
readiness to swear to any fact which he imagined
would aid in securing his object. An admittedly
genuine and authentic signature of the deceased
was introduced in evidence for comparison with
the signature attached to the will, but this witness
in his anxiety to deny the genuineness of the
signature of his brother to the will, promptly and
positively swore that the admittedly genuine
signature was not his brother's signature, and only
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 103
corrected his erroneous statement in response to a
somewhat suggestive question by his attorney
which evidently gave him to understand that his
former answer was likely to prejudice his own
cause. On cross-examination, he was forced to
admit that because his brother and his brother's
wife (in those favor the will was made) were
Aglipayanos, he and his other brothers and sisters
had not visited them for many months prior to the
one particular occasion as to which testified; and
he admitted further, that, although he lived near
at hand, at no time thereafter did he or any of the
other members of his family visit their dying
brother, and that they did not even attend the
funeral. If the testimony of this witness could be
accepted as true, it would be a remarkable
coincidence indeed, that the subscribing witnesses
to the alleged will should have falsely pretended
to have joined in its execution on the very day, and
at the precise hour, when this interested witness
happened to pay his only visit to his brother during
his last illness, so that the testimony of this
witness would furnish conclusive evidence in
support of the allegations of the contestants that
the alleged will was not executed at the time and
place or in the manner and form alleged by the
subscribing witnesses. We do not think that the
testimony of this witness nor any of the other
witnesses for the contestants is sufficient to raise
even a doubt as to the truth of the testimony of
the subscribing witnesses as to the fact of the
execution of the will, or as to the manner and from
in which it was executed.
In the course of the proceedings, an admittedly
genuine signature of the deceased was introduced
in evidence, and upon a comparison of this
signature with the signature attached to the
instrument in question, we are wholly of the
opinion of the trial judge, who held in this
connection as follows:
No expert evidence has been adduced with regard
to these two signatures, and the presiding judge of
this court does not claim to possess any special
expert knowledge in the matter of signatures;
nevertheless, the court has compared these two
signatures, and does not find that any material
differences exists between the same. It is true that
the signature which appears in the document
offered for authentication discloses that at the
time of writing the subscriber was more deliberate

in his movements, but two facts must be
acknowledge: First, that the testator was seriously
ill, and the other fact, that for some reason which
is not stated the testator was unable to see, and
was a person who was not in the habit of signing
his name every day.
These facts should sufficiently explain whatever
difference may exist between the two signatures,
but the court finds that the principal strokes in the
two signatures are identical.
That the testator was mentally capable of making
the will is in our opinion fully established by the
testimony of the subscribing witnesses who swore
positively that, at the time of its execution, he was
of sound mind and memory. It is true that their
testimony discloses the fact that he was at that
time extremely ill, in an advanced stage of
tuberculosis complicated with severe intermittent
attacks of asthma; that he was too sick to rise
unaided from his bed; that he needed assistance
even to rise himself to a sitting position; and that
during the paroxysms of asthma to which he was
subject he could not speak; but all this evidence of
physical weakness in no wise establishes his
mental incapacity or a lack of testamentary
capacity, and indeed the evidence of the
subscribing witnesses as to the aid furnished them
by the testator in preparing the will, and his clear
recollection of the boundaries and physical
description of the various parcels of land set out
therein, taken together with the fact that he was
able to give to the person who wrote the will clear
and explicit instructions as to his desires touching
the disposition of his property, is strong evidence
of his testamentary capacity.
Counsel for appellant suggests that the fact that
the alleged will leaves all the property of the
testator to his widow, and wholly fails to make any
provision for his brothers or sisters, indicates a
lack of testamentary capacity and undue influence;
and because of the inherent improbability that a
man would make so unnatural and unreasonable a
will, they contend that this fact indirectly
corroborates their contention that the deceased
never did in fact execute the will. But when it is
considered that the deceased at the time of his
death had no heirs in the ascending or descending
line; that a bitter family quarrel had long
separated him from his brothers and sisters, who
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 104
declined to have any relations with the testator
because he and his wife were adherents of the
Aglipayano Church; and that this quarrel was so
bitter that none of his brothers or sisters, although
some of them lived in the vicinity, were present at
the time of his death or attended his funeral; we
think the fact that the deceased desired to leave
and did leave all of his property to his widow and
made no provision for his brothers and sisters,
who themselves were grown men and women, by
no means tends to disclose either an unsound
mind or the presence of undue influence on the
part of his wife, or in any wise corroborates
contestants' allegation that the will never was
executed.
It has been said that "the difficulty of stating
standards or tests by which to determine the
degree of mental capacity of a particular person
has been everywhere recognized, and grows out of
the inherent impossibility of measuring mental
capacity, or its impairment by disease or other
causes" (Greene vs. Greene, 145 III., 264, 276); and
that "it is probable that no court has ever
attempted to lay down any definite rule in respect
to the exact amount of mental capacity requisite
for the making of a valid will, without appreciating
the difficulty of the undertaking" (Trish vs.Newell,
62 III., 196, 203).
Between the highest degree of soundness of mind
and memory which unquestionably carries with it
full testamentary capacity, and that degree of
mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental
capacity or incapacity, and while on one hand it
has been held that "mere weakness of mind, or
partial imbecility from the disease of body, or from
age, will not render a person incapable of making a
will, a weak or feeble minded person may make a
valid will, provided he has understanding memory
sufficient to enable him to know what he is about,
and how or to whom he is disposing of his
property" (Lodge vs. Lodge, 2 Houst. (Del.), 418);
that, "To constitute a sound and disposing mind, it
is not necessary that the mind should be unbroken
or unimpaired, unshattered by disease or
otherwise" (Sloan vs. Maxwell, 3 N. J. Eq., 563);
that "it has not been understood that a testator
must possess these qualities (of sound and
disposing mind and memory) in the highest
degree. . . . Few indeed would be the wills

confirmed, if this is correct. Pain, sickness, debility
of body, from age or infirmity, would, according to
its violence or duration, in a greater or less degree,
break in upon, weaken, or derange the mind, but
the derangement must be such as deprives him of
the rational faculties common to man"
(Den. vs. Vancleve, 5 N. J. L.,680); and, that "Sound
mind does not mean a perfectly balanced mind.
The question of soundness is one of degree"
(Boughton vs. Knight, L. R.,3 P. & D., 64; 42 L. J. P.,
25); on the other hand, it has been held that
"testamentary incapacity does not necessarily
require that a person shall actually be insane or of
an unsound mind. Weakness of intellect, whether
it arises from extreme old age from disease, or
great bodily infirmities or suffering, or from all
these combined, may render the testator
incapable of making a valid will, providing such
weakness really disqualifies her from knowing or
appreciating the nature, effects, or consequences
of the act she is engaged in" (Manatt vs. Scott, 106
Iowa, 203; 68 Am. St. Rep., 293, 302).
But for the purposes of this decision it is not
necessary for us to attempt to lay down a
definition of testamentary capacity which will
cover all possible cases which may present
themselves, because, as will be seen from what
has already been said, the testator was, at the
time of making the instrument under
consideration, endowed with all the elements of
mental capacity set out in the following definition
of testamentary capacity which has been
frequently announced in courts of last resort in
England and the United States; and while is some
cases testamentary capacity has been held to exist
in the absence of proof of some of these elements,
there can be no question that, in the absence of
proof of very exceptional circumstances, proof of
the existence of all these elements in sufficient to
establish the existence of testamentary capacity.
Testamentary capacity is the capacity to
comprehend the nature of the transaction which
the testator is engaged at the time, to recollect the
property to be disposed of and the person who
would naturally be supposed to have claims upon
the testator, and to comprehend the manner in
which the instrument will distribute his property
among the objects of his bounty.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 105
(Cf. large array of cases cited in support of this
definition in the Encyclopedia of Law, vol. 23, p.
71, second edition.)
In our opinion, the evidence of record establishes
in a strikingly conclusive manner the execution of
the instrument propounded as the last will and
testament of the deceased; that it was made in
strict conformity with the requisites prescribed by
law; and that, at the time of its execution, the
deceased was of sound mind and memory, and
executed the instrument of his own free will and
accord.
The order probating the will should be land is
hereby affirmed, with the cost of this instance
against the appellants.
Arellano, C. J., Torres, Johnson, and Moreland,
JJ., concur.
CASE NO. 21
G.R. No. L-6801 March 14, 1912
JULIANA BAGTAS, plaintiffs-appellee,
vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.
Salas and Kalaw for appellants.
Jose Santiago for appellee.
TRENT, J.:
This is an appeal from an order of the Court of First
Instance of the Province of Bataan, admitting to
probate a document which was offered as the last
will and testament of Pioquinto Paguio y Pizarro.
The will purports to have been executed in the
pueblo of Pilar, Province of Bataan, on the 19th
day of April, 1908. The testator died on the 28th of
September, 1909, a year and five months following
the date of the execution of the will. The will was
propounded by the executrix, Juliana Bagtas,
widow of the decedent, and the opponents are a
son and several grandchildren by a former
marriage, the latter being the children of a
deceased daughter.
The basis of the opposition to the probation of the
will is that the same was not executed according to

the formalities and requirements of the law
touching wills, and further that the testator was
not in the full of enjoyment and use of his mental
faculties and was without the mental capacity
necessary to execute a valid will.
The record shows that the testator, Pioquinto
Paguio, for some fourteen of fifteen years prior to
the time of his death suffered from a paralysis of
the left side of his body; that a few years prior to
his death his hearing became impaired and that he
lost the power of speech. Owing to the paralysis of
certain muscles his head fell to one side, and saliva
ran from his mouth. He retained the use of his
right hand, however, and was able to write fairly
well. Through the medium of signs he was able to
indicate his wishes to his wife and to other
members of his family.
At the time of the execution of the will there were
present the four testamentary witnesses, Agustin
Paguio, Anacleto Paguio, and Pedro Paguio, and
attorney, Seor Marco, and one Florentino Ramos.
Anacleto Paguio and the attorney have since died,
and consequently their testimony was not
available upon the trial of the case in the lower
court. The other three testamentary witnesses and
the witness Florentino Ramos testified as to the
manner in which the will was executed. According
to the uncontroverted testimony of these
witnesses the will was executed in the following
manner:
Pioquinto Paguio, the testator, wrote out on
pieces of paper notes and items relating to the
disposition of his property, and these notes were
in turn delivered to Seor Marco, who transcribed
them and put them in form. The witnesses testify
that the pieces of paper upon which the notes
were written are delivered to attorney by the
testator; that the attorney read them to the
testator asking if they were his testamentary
dispositions; that the testator assented each time
with an affirmative movement of his head; that
after the will as a whole had been thus written by
the attorney, it was read in a loud voice in the
presence of the testator and the witnesses; that
Seor Marco gave the document to the testator;
that the latter, after looking over it, signed it in the
presence of the four subscribing witnesses; and
that they in turn signed it in the presence of the
testator and each other.
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 106
These are the facts of record with reference to the
execution of the will and we are in perfect accord
with the judgment of the lower court that the
formalities of the Code of Civil Procedure have
been fully complied with.
This brings us now to a consideration of
appellants' second assignment of error, viz, the
testator's alleged mental incapacity at the time of
the execution of the will. Upon this point
considerable evidence was adduced at the trial.
One of the attesting witnesses testified that at the
time of the execution of the will the testator was
in his right mind, and that although he was
seriously ill, he indicated by movements of his
head what his wishes were. Another of the
attesting witnesses stated that he was not able to
say whether decedent had the full use of his
mental faculties or not, because he had been ill for
some years, and that he (the witnesses) was not a
physician. The other subscribing witness, Pedro
Paguio, testified in the lower court as a witness for
the opponents. He was unable to state whether or
not the will was the wish of the testator. The only
reasons he gave for his statement were the
infirmity and advanced age of the testator and the
fact that he was unable to speak. The witness
stated that the testator signed the will, and he
verified his own signature as a subscribing witness.
Florentino Ramos, although not an attesting
witness, stated that he was present when the will
was executed and his testimony was cumulative in
corroboration of the manner in which the will was
executed and as to the fact that the testator
signed the will. This witness also stated that he
had frequently transacted matters of business for
the decedent and had written letters and made
inventories of his property at his request, and that
immediately before and after the execution of the
will he had performed offices of his character. He
stated that the decedent was able to communicate
his thoughts by writing. The testimony of this
witness clearly indicates the presence of mental
capacity on the part of the testator. Among other
witnesses for the opponents were two physician,
Doctor Basa and Doctor Viado. Doctor Basa
testified that he had attended the testator some
four or five years prior to his death and that the
latter had suffered from a cerebral congestion
from which the paralysis resulted. The following
question was propounded to Doctor Basa:

Q. Referring to mental condition in which you
found him the last time you attended him, do you
think he was in his right mind?
A. I can not say exactly whether he was in his
right mind, but I noted some mental disorder,
because when I spoke to him he did not answer
me.
Doctor Basa testified at more length, but the
substance of his testimony is that the testator had
suffered a paralysis and that he had noticed some
mental disorder. He does not say that the testator
was not in his right mind at the time of the
execution of the will, nor does he give it at his
opinion that he was without the necessary mental
capacity to make a valid will. He did not state in
what way this mental disorder had manifested
itself other than that he had noticed that the
testator did not reply to him on one occasion when
he visited him.
Doctor Viado, the other physician, have never seen
the testator, but his answer was in reply to a
hypothetical question as to what be the mental
condition of a person who was 79 years old and
who had suffered from a malady such as the
testator was supposed to have had according to
the testimony of Doctor Basa, whose testimony
Doctor Viado had heard. He replied and discussed
at some length the symptoms and consequences
of the decease from which the testator had
suffered; he read in support of his statements from
a work by a German Physician, Dr. Herman Eichost.
In answer, however, to a direct question, he stated
that he would be unable to certify to the mental
condition of a person who was suffering from such
a disease.
We do not think that the testimony of these two
physicians in any way strengthens the contention
of the appellants. Their testimony only confirms
the fact that the testator had been for a number of
years prior to his death afflicted with paralysis, in
consequence of which his physician and mental
strength was greatly impaired. Neither of them
attempted to state what was the mental condition
of the testator at the time he executed the will in
question. There can be no doubt that the testator's
infirmities were of a very serious character, and it
is quite evident that his mind was not as active as
it had been in the earlier years of his life. However,
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 107
we can not include from this that he wanting in the
necessary mental capacity to dispose of his
property by will.
The courts have been called upon frequently to
nullify wills executed under such circumstances,
but the weight of the authority is in support if the
principle that it is only when those seeking to
overthrow the will have clearly established the
charge of mental incapacity that the courts will
intervene to set aside a testamentary document of
this character. In the case of Bugnao vs. Ubag (14
Phil. Rep., 163), the question of testamentary
capacity was discussed by this court. The
numerous citations there given from the decisions
of the United States courts are especially
applicable to the case at bar and have our
approval. In this jurisdiction the presumption of
law is in favor of the mental capacity of the
testator and the burden is upon the contestants of
the will to prove the lack of testamentary capacity.
(In the matter of the will of Cabigting, 14 Phil.
Rep., 463; in the matter of the will of Butalid, 10
Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep.,
689.)
The rule of law relating to the presumption of
mental soundness is well established, and the
testator in the case at bar never having been
adjudged insane by a court of competent
jurisdiction, this presumption continues, and it is
therefore incumbent upon the opponents to
overcome this legal presumption by proper
evidence. This we think they have failed to do.
There are many cases and authorities which we
might cite to show that the courts have repeatedly
held that mere weakness of mind and body,
induced by age and disease do not render a person
incapable of making a will. The law does not
require that a person shall continue in the full
enjoyment and use of his pristine physical and
mental powers in order to execute a valid will. If
such were the legal standard, few indeed would be
the number of wills that could meet such exacting
requirements. The authorities, both medical and
legal, are universal in statement that the question
of mental capacity is one of degree, and that there
are many gradations from the highest degree of
mental soundness to the lowest conditions of
diseased mentality which are denominated as
insanity and idiocy.

The right to dispose of property by testamentary
disposition is as sacred as any other right which a
person may exercise and this right should not be
nullified unless mental incapacity is established in
a positive and conclusive manner. In discussing the
question of testamentary capacity, it is stated in
volume 28, 70, of the American and English
Encyclopedia of Law, that
Contrary to the very prevalent lay impression,
perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted
with a variety of mental weaknesses, disorders, or
peculiarities and still be capable in law of
executing a valid will. (See the numerous cases
there cited in support of this statement.)
The rule relating to testamentary capacity is stated
in Buswell on Insanity, section 365, and quoted
with approval in Campbell vs. Campbell (130 Ill.,
466), as follows:
To constitute a sound and disposing mind, it is not
necessary that the mind shall be wholly unbroken,
unimpaired, or unshattered by disease or
otherwise, or that the testator should be in the full
possession of his reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule is thus
stated:
The question is not so much, that was the degree
of memory possessed by the testator, as, had he a
disposing memory? Was he able to remember the
property he was about to bequeath, the manner of
disturbing it, and the objects of his bounty? In a
word, were his mind and memory sufficiently
sound to enable him to know and understand the
business in which he was engaged at the time
when he executed his will. (See authorities there
cited.)
In Wilson vs. Mitchell (101 Penn., 495), the
following facts appeared upon the trial of the case:
The testator died at the age of nearly 102 years. In
his early years he was an intelligent and well
informed man. About seven years prior to his
death he suffered a paralytic stroke and from that
time his mind and memory were mush enfeebled.
He became very dull of hearing and in
consequence of the shrinking of his brain he was
affected with senile cataract causing total
blindness. He became filthy and obscene in his
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 108
habits, although formerly he was observant of the
properties of life. The court, in commenting upon
the case, said:
Neither age, nor sickness, nor extreme distress,
nor debility of body will affect the capacity to
make a will, if sufficient intelligence remains. The
failure of memory is not sufficient to create the
incapacity, unless it be total, or extend to his
immediate family or property. . . .
xxx xxx xxx
Dougal (the testator) had lived over one hundred
years before he made the will, and his physical and
mental weakness and defective memory were in
striking contrast with their strength in the
meridian of his life. He was blind; not deaf, but
hearing impaired; his mind acted slowly, he was
forgetful or recent events, especially of names,
and repeated questions in conversation; and
sometimes, when aroused for sleep or slumber,
would seem bewildered. It is not singular that
some of those who had known him when he was
remarkable for vigor and intelligence, are of the
opinion that his reason was so far gone that he
was incapable of making a will, although they
never heard him utter an irrational expression.
In the above case the will was sustained. In the
case at bar we might draw the same contrast as
was pictured by the court in the case just quoted.
The striking change in the physical and mental
vigor of the testator during the last years of his life
may have led some of those who knew him in his
earlier days to entertain doubts as to his mental
capacity to make a will, yet we think that the
statements of the witnesses to the execution of
the will and statements of the conduct of the
testator at that time all indicate that he
unquestionably had mental capacity and that he
exercised it on this occasion. At the time of the
execution of the will it does not appear that his
conduct was irrational in any particular. He seems
to have comprehended clearly what the nature of
the business was in which he was engaged. The
evidence show that the writing and execution of
the will occupied a period several hours and that
the testator was present during all this time,
taking an active part in all the proceedings. Again,
the will in the case at bar is perfectly reasonable
and its dispositions are those of a rational person.

For the reasons above stated, the order probating
the will should be and the same is hereby
affirmed, with costs of this instance against the
appellants.
CASE NO. 22
G.R. No. L-6650 December 5, 1913
SANTIAGO GALVEZ, petitioner-appellant,
vs.
CANUTA GALVEZ, opponent-appellee.
Eugenio Paguia, for appellant.
Antonio Constantino, for appellee.
TORRES, J.:
This appeal was raised by counsel for Santiago
Galvez from the judgment of October 25, 1910,
whereby the Honorable Simplicio del Rosario,
judge, denied the petition presented by the said
Galvez for the probate of the will, Exhibit B, and
appointed as administratrix of the testator's
estate, the latter's only legitimate daughter,
Canuta Galvez, under condition that she furnish
bond in the sum of P2,000 for the faithful
discharge of the duties of her office.
Counsel for Santiago Galvez petitioned the Court
of First Intance of Bulacan for the probate of the
will which it was alleged Victor Galvez executed in
the dialect of the province, on August 12, 1910, in
presence of the witnesses Juan Dimanlig, J.
Leoquinco, and Nazaria Galvez. This instrument
appears also to have been signed by the witness
Lorenzo Galvez, below the name and surname of
the testator. (p. 3, B. of E., translated into Spanish
on p. 5.)lawphil.net
Further on in the same record, pages 6 to 7, there
appears another will written in Tagalog and
executed on the same date by Victor Galvez in
presence of the witnesses Cirilo Paguia, Florentino
Sison, and Juan Menodoza.
In the course of the proceedings various witnesses
were examined by the petitioner and by the
respondent, Canuta Galvez, the only daughter of
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 109
the alleged testator, and the attorney Antonio
Constantino stated that he waived the right to
present evidence and acquiesced in the petition
made by Santiago Galvez for the probate of the
will, in view of a transaction entered into by the
parties; but the court did not accept the
compromise, on the ground that it is improper to
hold that a will is the faithful expression of the last
wishes of a decedent, upon the mere fact of the
parties' petitioning to that effect, when such will,
as in the case at bar, was assailed at the
commencement of the suit.
After due trial the judgment aforementioned was
rendered, from which an appeal was entered by
counsel for the petitioner, Santiago Galvez.
This case deals with the probate of the second will
executed by Victor Galvez on August 12, 1910, and
signed in his presence by the witness Juan
Dimanlig, Nazaria Galvez and J. Leoquinco, and, as
the testator was no longer able to sign on account
of his sickness, Lorenzo Galvez, at his request,
affixed his own signature to the instrument, for
him and below his written name. This will, written
in Tagalog and translated into Spanish, is marked
as Exhibit B and is found on pages 3 and 5 of the
bill of exceptions.
The other will, written in Tagalog and marked
Exhibit A, was presented during the proceedings; it
was the first one the testator executed on the
same date, and, for the purpose of correcting an
error contained in this first will, he executed
another will, the second, which is the one
exhibited for probate.
Notwithstanding the opposition by Canuta Galvez,
the testator's daughter, who alleged that her
father, owing to his very serious sickness with
cholera, lacked the intellectual capacity and clear
judgment requisite for making a will, and
notwithstanding her testimony adduced in
corroboration of her brief, the record sufficiently
proved the contrary; the subscribing witnesses to
the will affirmed under oath that they were
present when Victor Galvez, then sick in his house,
stated to them that the document read before
them by Lorenzo Galvez contained his last will and
testament, and that, as the testator was no longer
able to sign, he charged his nephew Lorenzo to do
so in his stead, which he latter did by affixing his

own signature to the document, after having
written at the foot of the same the name and
surname of the testator, Victor Galvez, who as
these witnesses observed, was of sound mind and
in the full enjoyment of his mental faculties; he
talked intelligently and with perfect knowledge of
what was taking place. They further testified that
they all, including the said Lorenzo Galvez, signed
the will in the presence of the testator, Victor
Galvez, who was at the time lying on his bed.
In order to hold that Victor Galvez, on account of
serious sickness, was not then of sound mind and
did not have full knowledge of his acts and,
therefore, was incapable to execute a will, it is
necessary that the proceedings disclose conclusive
proof of his mental incapacity and of his evident
lack of reason and judgment at the time he
executed his will in the presence of the witnesses
whose signatures appear at the foot thereof, for
these witnesses capacity positively affirmed that
Victor Galvez, on executing his will showed that he
was in full possession of his intellectual faculties
and was perfectly cognizant of his acts.
The physician Dr. Vicente de Jesus, in his
testimony, referred to the effects and results of
cholera on a patient in ordinary cases and in the
regular course of this disease; but his statements,
taken in general, cannot, in the present suit,
served as a ground upon which to predicate
incapacity, for the reason that he did not examine
Victor Galvez, nor did he even see him between
the hours of 12 in the morning and 3 in the
afternoon of the 12th of August, 1910, during
which period the testator ordered his will drawn
up and the attesting witnesses signed it, Galvez
having died at about 6 o'clock that same
afternoon. It may be true that cholera patients do,
in the majority of cases, become incapacitated in
the manner described by the witness; but there
may be exceptions to the general rule, and to
judge from the testimony of the witnesses who
saw and communicated with the patient Victor
Galvez at the time he executed his will, his physical
and mental condition must have been an
exception, since he demonstrated that he had
sufficient energy and clear intelligence to execute
his last will in accordance with the requirements of
the law.1awphi1.net
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 110
Besides the attestation of the aforesaid
subscribing witnesses, the contents of the will and
the testator's positive determination to rectify the
error he incurred in the execution of his first will,
show that Victor Galvez was in his sound mind and
was perfectly aware of his duties in respect to the
legal, inviolable rights of his daughter and sole
heir, Canuta Galvez.
Inasmuch as, in the drafting and execution of the
second will (Exhibit B), signed in the name of the
testator by Lorenzo Galvez and the witnesses Juan
Dimanlig, Nazaria Galvez, and J. Leoquinco, the
formalities prescribed by section 618 of the Code
of Civil Procedure were observed, for the testator's
name appears written at the foot of the will and
under this name Lorenzo Galvez signed by
direction of the testator himself, and the
instrument was also signed by the attesting
witnesses before mentioned who affirmed that
they heard and attested the dispositions made by
the testator and witnessed the reading of the will,
that they were present when the said Lorenzo
Galvez signed the will in the name of the testator
and that they signed it in the presence of all the
persons assembled in the latter's house, the
conclusion is inevitable that Victor Galvez, in
executing his will, did so with a sound mind and
the full use of his mental faculties; therefore, the
will must be admitted to probate.
For the foregoing reasons, with a reversal of the
judgment appealed from in so far as it denies the
probate of the said will, we hereby hold that the
same was duly executed by Victor Galvez and
expresses his last wishes, and we affirm the rest of
the said judgment, with respect to the
appointment, as administratrix, of Canuta Galvez,
the testator's daughter and sole heir.
CASE NO. 23
G.R. No. L-25966 November 1, 1926
In the matter of the estate of Tomas Rodriguez,
deceased. MANUEL TORRES, special administrator,
and LUZ LOPEZ DE BUENO, heir, appellee,
vs.
MARGARITA LOPEZ, opponent-appellant.

Marcaida, Capili and Ocampo and Camus, Delgado
and Recto for appellant.
Araneta and Zaragoza for appellee.
STREET, J.:
This appeal involves a controversy over one-half of
the estate of Tomas Rodriguez, decedent. The
appellant, Margarita Lopez, claims said half by the
intestate succession as next of kin and nearest
heir; while the appellee, Luz Lopez de Bueno,
claims the same by accredition and in the
character of universal heir the will of the
decedent. The trial court decided the point of
controversy in favor of Luz Lopez de Bueno, and
Margariat Lopez appealed.
The facts necessary to an understanding of the
case are these: On January 3, 1924, Tomas
Rodriguez executed his last will and testament, in
the second clause of which he declared:
I institute as the only and universal heirs to all my
property, my cousin Vicente F. Lopez and his
daughter Luz Lopez de Bueno.
Prior to the time of the execution of this will the
testator, Tomas Rodriguez, had been judicially
declared incapable of taking care of himself and
had been placed under the care of his cousin
Vicente F. Lopez, as guardian. On January 7, 1924,
or only four days after the will above-mentioned
was made, Vicente F. Lopez died; and the testator,
Tomas Rodriguez, died on February 25, 1924,
thereafter. At the time the will was made Vicente
F. Lopez had not presented his final accounts as
guardian, and no such accounts had been
presented by him at the time of his death.
Margariat Lopez was a cousin and nearest relative
of the decedent. The will referred to, and after
having been contested, has been admitted to
probate by judicial determination (Torres and
Lopez de Bueno vs. Lopez, 48 Phil., 772).
Our discussion of the legal problem presented
should begin with article 753 of the Civil Code
which in effect declares that, with certain
exceptions in favor of near relatives, no
testamentary provision shall be valid when made
by a ward in favor of his guardian before the final
accounts of the latter have been approved. This
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 111
provision is of undoubted application to the
situation before us; and the provision made in the
will of Tomas Rodriguez in favor of Vicente F.
Lopez was not any general incapacity on his part,
but a special incapacity due to the accidental
relation of guardian and ward existing between
the parties.
We now pass to article 982 of the Civil Code,
defining the right of accretion. It is there declared,
in effect, that accretion take place in a
testamentary succession, first when the two or
more persons are called to the same inheritance or
the same portion thereof without special
designation of shares; and secondly, when one of
the persons so called dies before the testator or
renounces the inheritance or is disqualifying to
receive it. In the case before us we have a will
calling Vicente F. Lopez and his daughter, Luz
Lopez de Bueno, to the same inheritance without
special designation of shares. In addition to this,
one of the persons named as heir has predeceased
the testator, this person being also disqualified to
receive the estate even if he had been alive at the
time of the testator's death. This article (982) is
therefore also of exact application to the case in
hand; and its effect is to give to the survivor, Luz
Lopez de Bueno, not only the undivided half which
she would have received in conjunction with her
father if he had been alive and qualified to take,
but also the half which pertained to him. There
was no error whatever, therefore, in the order of
the trial court declaring Luz Lopez de Bueno
entitled to the whole estate.
The argument in favor of the appellant supposes
that there has supervened a partial intestacy with
respect to the half of the estate which was
intended for Vicente F. Lopez and that this half has
descended to the appellant, Margarita Lopez, as
next of kin and sole heir at law of the decedent. In
this connection attention is directed to article 764
of the Civil Code wherein it is declared, among
other things, that a will may be valid even though
the person instituted as heir is disqualified to
inherit. Our attention is next invited to article 912
wherein it is declared, among other things, that
legal succession takes place if the heir dies before
the testator and also when the heir instituted is
disqualified to succeed. Upon these provisions an
argument is planted conducting to the conclusion
that the will of Tomas Rodriguez was valid,

notwithstanding the fact that one of the
individuals named as heirs in the will was
disqualified to take, and that as a consequence
Margarita Lopez s entitled to inherit the share of
said disqualified heir.
We are the opinion that this contention is
untenable and that the appellee clearly has the
better right. In playing the provisions of the Code it
is the duty of the court to harmonize its provisions
as far as possible, giving due effect to all; and in
case of conflict between two provisions the more
general is to be considered as being limited by the
more specific. As between articles 912 and 983, it
is obvious that the former is the more general of
the two, dealing, as it does, with the general topic
of intestate succession while the latter is more
specific, defining the particular conditions under
which accretion takes place. In case of conflict,
therefore, the provisions of the former article
must be considered limited by the latter. Indeed,
in subsection 3 of article 912 the provision with
respect to intestate succession is expressly
subordinated to article 983 by the expression "and
(if) there is no right of accretion." It is true that the
same express qualification is not found in
subsection 4 of article 912, yet it must be so
understood, in view of the rule of interpretation
above referred to, by which the more specific is
held to control the general. Besides, this
interpretation supplies the only possible means of
harmonizing the two provisions. In addition to this,
article 986 of the Civil Code affords independent
proof that intestate succession to a vacant portion
can only occur when accretion is impossible.
The attorneys for the appellant direct attention to
the fact that, under paragraph 4 of article 912,
intestate succession occurs when the heir
instituted is disqualified to succeed (incapaz de
suceder), while, under the last provision in
paragraph 2 of article 982, accretion occurs when
one of the persons called to inherit under the will
is disqualified to receive the inheritance (incapaz
de recibirla). A distinction is then drawn between
incapacity to succeed and incapacity to take, and it
is contended that the disability of Vicente F. Lopez
was such as to bring the case under article 912
rather than 982. We are of the opinion that the
case cannot be made to turn upon so refined an
interpretation of the language of the Code, and at
any rate the disability to which Vicente F. Lopez
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 112
was subject was not a general disability to succeed
but an accidental incapacity to receive the legacy,
a consideration which makes a case for accretion
rather than for intestate succession.
The opinions of the commentators, so far as they
have expressed themselves on the subject, tend to
the conclusion that the right of accretion with
regard to portions of an inheritance left vacant by
the death or disqualification of one of the heirs or
his renunciation of the inheritance is governed by
article 912, without being limited, to the extent
supposed in appellant's brief, by provisions of the
Code relative to intestate succession
(Manresa, Comentarios al Codigo Civil Espaol, 4th
ed., vol. VII, pp. 310, 311; id., 34; 13 Mucius
Scaevola, pp. 372, 373, 285-287; 16 Mucius
Scaevola, 186). Says Escriche: "It is to be
understood that one of the coheirs or colegatees
fails if nonexistent at the time of the making of the
will, or he renounces the inheritance or legacy, if
he dies before the testator, if the condition be not
fulfilled, or if he becomes otherwise incapacitated.
. . . (Diccionario de Legislacion y Jurisprudencia,
vol. I, p. 225.)lawphil.net
In conclusion it may be worth observing that there
has always existed both in the civil and in the
common law a certain legal intendment,
amounting to a mild presumption, against partial
intestacy. In Roman law, as is well known, partial
testacy systems a presumption against it, a
presumption which has its basis in the supposed
intention of the testator.
The judgment appealed from will be affirmed, and
it is so ordered, with costs against the appellant.
CASE NO. 24
G.R. No. L-24665 October 13, 1926
Estate of the deceased Isidra Abquilan. ATANASIO
ABQUILAN, petitioner-appellant,
vs.
FELICIANA ABQUILAN, opponent-appellee.

Simeon Bitanga and Vicente Sotto for appellant.
R. Nolan and Feria and La O for appellee.
STREET, J.:
This appeal has been brought to reverse an order
of the Court of First Instance of the Province of
Occidental Negros, refusing to legalize an
instrument (Exhibit A) purporting to be the last will
and testament of Isidra Abquilan, deceased. It
appears that the deceased left no forced heirs, and
her only heirs, in case of intestacy, are her brother,
Atanasio Abquilan, the proponent of the will, and
Feliciana Abquilan, a sister, who is the opponents.
Upon hearing the cause the trial court found that
the document propounded as the will of the
deceased is apocryphal, that the purported
signatures of the deceased to the supposed will
are forgeries, and that the instrument in question
was not executed by the deceased. He therefore
denied probate, and the proponent appealed.
We have carefully examined the evidence, and
upon repeated perusal of the appealed decision,
we find that the conclusions of fact stated therein
are so completely in harmony with our own view
of the case, that no new exposition of the facts is
necessary. A clear preponderance of the evidence
shows that on November 6, 1924, the date when
the will purports to have been executed, the
supposed testatrix was not in a condition such as
to enable her to have participated in the act, she
being in fact at that time suffering from paralysis
to celebral hemorrhage in such degree as
completely to discapacitate her for intelligent
participation in the act of making a will. A careful
comparison of the name of the testatrix as signed
in two places to the Exhibit A, with many of her
authentic signatures leads to the conclusion that
the signatures to the supposed will were made by
some other person. Furthermore, the combined
testimony of Juan Serato and Alejandro Genito
completely demonstrate in our opinion that no will
at all was made on November 6, the date
attributed to the questioned document, and that,
instead an attempt was made on the night of that
day to fabricate another will, which failed of
completion because of the refusal of Alejandro
Genito to be party to the making of a will in which
the testatrix took no part. The instrument before
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 113
us was undoubtedly fabricated later, probably on
November 7, at a time when the condition of the
deceased was such as to make rational
participation on her part in the act of making a will
impossible.
The judgment appealed from will be affirmed, and
it is so ordered, with costs against the appellant.
Avancea, C. J., Johnson, Villamor, Ostrand, Johns,
Romualdez and Villa-Real, JJ., concur.
CASE NO. 25
G.R. No. L-33592 March 31, 1931
Estate of the deceased Victorina Villaranda.
EUSEBIA LIM, petitioner-appellant,
vs.
JULIANA CHINCO, oppositor-appellee.
Perfecto Gabriel and Eusebio Orense for appellant.
Camus and Delgado for appellee.
STREET, J.:
This is a contest over the probate of a paper
writing purporting to be the will of Victorina
Villaranda y Diaz, a former resident of the
municipality of Meycauayan, Province of Bulacan,
who died in the Hospital of San Juan de Dios, in the
City of Manila, on June 9, 1929. The deceased left
no descendants or ascendants, and the document
produced as her will purports to leave her estate,
consisting of properties valued at P50,000, more or
less, chiefly to three collateral relatives, Eusebia,
Crispina, and Maria, of the surname of Lim. This
instrument was offered for probate by Eusebia
Lim, named in the instrument as executrix
Opposition was made by Juliana Chinco, a full
sister of the deceased. Upon hearing the cause the
trial court sustained the opposition and disallowed
the will on the ground that the testatrix did not
have testamentary capacity at the time the
instrument purports to have been executed by her
From this judgment the proponent of the will
appealed.
The deceased was a resident of Mercauayan,
Province of Bulacan, and was about 80 years of age
at the time of her death. On the morning of June 2,

1929, she was stricken with apoplexy, incident to
cerebral hemorrhage, and was taken in an
unconscious condition, seated in a chair, to her
room. Doctor Geronimo Z. Gaanan, a local
physician of Meycauayan, visited the old lady, with
whom he was well acquianted, three or four times,
the first visit having occurred between 6 and 7 p.
m. of June 3d. Upon examining the patient, he
found her insensible and incapable of talking or
controlling her movements. On the same day the
parish priest called for the purpose of
administering the last rites of the church, and
being unable to take her confession, he limited
himself to performing the office of extreme
unction. Doctor Isidoro Lim, of Manila, was also
called upon to visit the patient and he came to see
her two or three times. With his approval, it was
decided to take the woman to the hospital of San
Juan de Dios in Manila, and on the morning of June
5, 1929, the ambulance from this hospital arrived,
in charge of Doctor Guillermo Lopez del Castillo, a
resident physician of the hospital. At about 11
c'clock a.m. on that day she was embarked on the
ambulance and taken to the hospital, where she
died four days later.
The purported will, which is the subject of this
proceeding, was prepared by Perfecto Gabriel, a
practicing attorney of Manila, whose wife appears
to be related to the chief beneficiaries named in
the will. This gentlemen arrived upon the scene at
9 o'clock on the forenoon of June 5, 1929. After
informing himself of the condition of the testatrix,
he went into a room adjacent to that occupied by
the patient and, taking a sheet from an exercise
book, wrote the instrument in question. He then
took it into the sick room for execution. With this
end in view Gabriel suggested to Doctor Lopez del
Castillo that he would be pleased to have Doctor
Castillo sign as a witness, but the latter excused
himself for the reason that he considered the old
lady to be lacking in testamentary capacity.
Another person present was Marcos Ira, a first
cousin of the deceased, and attorney Gabriel asked
him also whether or not he was willing to sign as
one of the witnesses. Ira replied in a discouraging
tone, and the attorney turned away without
pressing the matter. In the end three persons
served as witnesses, all of whom were in friendly
relations with the lawyer, and two relatives of his
wife. The intended testatrix was not able to affix
SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 114
her signature to the document, and it was signed
for her by the attorney.
The vital question in the case is whether the
supposed testatrix had testamentary capacity at
the time the paper referred to was signed. Upon
this point we are of the opinion, as was the trial
judge, that the deceased, on the morning of June
5, 1929, was in a comatose condition and
incapable of performing any conscious and valid
act. The testimony of Doctor Gaanan and Doctor
Lopez del Castillo is sufficient upon this point, and
this testimony is well corroborated by Paciana Diaz
and Irene Ahorro. The first of these witnesses was
the one who chiefly cared for the deceased during
her last illness in Meycauayan until she was carried
away to the hospital in Manila; and the second
was a neighbor, who was called in when the stroke
of apoplexy first occurred and who visited the
patient daily until she was removed from
Meycauayan.
The testimony of these witnesses is convincing to
the effect that the patient was in a continuous
state of coma during the entire period of her stay
in Meycauayan, subsequent to the attack, and that
on the forenoon of June 5, 1929, she did not have
sufficient command of her faculties to enable her
to do any valid act. Doctor Lim, the physician from
Manila, testified for the proponent of the will. His
testimony tends to show that the patient was not
suffering from cerebral hemorrhage but from
urmic trouble, and that, after the first attack, the
patient was much relieved and her mind so far
cleared up that she might have made a will on the
morning of June 5th. The attorney testified that he
was able to communicate with the deceased when
the will was made, and that he read the
instrument over to her clause by clause and asked
her whether it expressed her wishes. He says that
she made signs that enabled him to understand
that she concurred in what was written. But it is
clear, even upon the statement of this witness,
that the patient was unable to utter intelligent
speech. Upon the authority of Perry vs. Elio (29
Phil., 134), the paper offered for probate was
properly disallowed.
The judgment appealed from will therefore be
affirmed, and it is so ordered, with costs against
the appellant.
 SUCCESSION CASES~ATTY. JUAN [KM.COLINA] 115

Avancea, C.J., Johnson, Villamor and Villa-Real,

JJ., concur.
Malcolm and Johns, JJ., concurred, but being
absent at the date of the promulgation of the
opinion, their names do not appear signed thereto.
AVANCEA, C.J.

Separate Opinions

ROMUALDEZ, J., dissenting:

I am of opinion that the will in question is genuine

and that it was drawn up and signed with all the
legal requisites; therefore, I vote for its allowance,
and the consequent reversal of the judgment
appealed from.