MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA,
DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants.

Priscilo Evangelista for appellee.

Brigido G. Estrada for appellant.

BAUTISTA ANGELO, J.:

This is an action for recovery of the ownership and possession of five (5) parcels of land
situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson
against Maria del Rosario and her four children named Concepcion, Conrado,
Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the
Court of First Instance of Pangasinan.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the
lands involved in this litigation. Faustino Nebreda left no other heir except his widow
Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his
common-law wife Maria del Rosario took possession illegally of said lands thus
depriving her of their possession and enjoyment.

Defendants in their answer set up as special defense that on February 21, 1931, Maria
Uson and her husband, the late Faustino Nebreda, executed a public document
whereby they agreed to separate as husband and wife and, in consideration of their
separation, Maria Uson was given a parcel of land by way of alimony and in return she
renounced her right to inherit any other property that may be left by her husband upon
his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered
decision ordering the defendants to restore to the plaintiff the ownership and possession
of the lands in dispute without special pronouncement as to costs. Defendants
interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino
Nebreda, former owner of the five parcels of lands litigated in the present case. There is
likewise no dispute that Maria del Rosario, one of the defendants-appellants, was
merely a common-law wife of the late Faustino Nebreda with whom she had four
illegitimate children, her now co-defendants. It likewise appears that Faustino Nebreda
died in 1945 much prior to the effectivity of the new Civil Code. With this
background, it is evident that when Faustino Nebreda died in 1945 the five parcels of
land he was seized of at the time passed from the moment of his death to his only heir,
his widow Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The
property belongs to the heirs at the moment of the death of the ancestor as completely
as if the ancestor had executed and delivered to them a deed for the same before his
death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the
rights of inheritance of Maria Uson over the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in
question because she expressly renounced to inherit any future property that her
husband may acquire and leave upon his death in the deed of separation they had
entered into on February 21, 1931, cannot be entertained for the simple reason that
future inheritance cannot be the subject of a contract nor can it be renounced (1
Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and
Ynchausti Steamship Co., 41 Phil., 531).

But defendants contend that, while it is true that the four minor defendants are
illegitimate children of the late Faustino Nebreda and under the old Civil Code are not
entitled to any successional rights, however, under the new Civil Code which became in
force in June, 1950, they are given the status and rights of natural children and are
entitled to the successional rights which the law accords to the latter (article 2264 and
article 287, new Civil Code), and because these successional rights were declared for
the first time in the new code, they shall be given retroactive effect even though the
event which gave rise to them may have occurred under the prior legislation (Article
2253, new Civil Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that
rights which are declared for the first time shall have retroactive effect even
though the event which gave rise to them may have occurred under the former
legislation, but this is so only when the new rights do not prejudice any vested or
acquired right of the same origin. Thus, said article provides that "if a right should be
declared for the first time in this Code, it shall be effective at once, even though the act
or event which gives rise thereto may have been done or may have occurred under the
prior legislation, provided said new right does not prejudice or impair any vested or
acquired right, of the same origin." As already stated in the early part of this
decision, the right of ownership of Maria Uson over the lands in question became
vested in 1945 upon the death of her late husband and this is so because of the
imperative provision of the law which commands that the rights to succession
are transmitted from the moment of death (Article 657, old Civil Code). The new
right recognized by the new Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the impairment of the vested right of
Maria Uson over the lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in
a gesture of pity or compassion, agreed to assign the lands in question to the minor
children for the reason that they were acquired while the deceased was living with their
mother and Maria Uson wanted to assuage somewhat the wrong she has done to them,
this much can be said; apart from the fact that this claim is disputed, we are of the
opinion that said assignment, if any, partakes of the nature of a donation of real
property, inasmuch as it involves no material consideration, and in order that it
may be valid it shall be made in a public document and must be accepted either
in the same document or in a separate one (Article 633, old Civil Code). Inasmuch
as this essential formality has not been followed, it results that the alleged
assignment or donation has no valid effect.

WHEREFORE, the decision appealed from is affirmed, without costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador,
JJ., concur.
G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-

appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE
DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa
Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of
Francisco de Borja, appellant. .

G.R. No L-28568 August 18, 1972

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

DE BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.

G.R. No. L-28611 August 18, 1972

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late

Francisco de Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa
Tangco, defendant-appellant.

L-28040

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

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

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of
the same compromise agreement by the Court of First Instance of Nueva Ecija,
Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de
Borja, Tasiana O. Vda. de de Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of
the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the
Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise
agreement, as the separate and exclusive property of the late Francisco de Borja
and not a conjugal asset of the community with his first wife, Josefa Tangco, and
that said hacienda pertains exclusively to his testate estate, which is under
administrator in Special Proceeding No. 832 of the Court of First Instance of
Nueva Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6
October 1940, filed a petition for the probate of her will which was docketed as Special
Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was
probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and
administrator: in 1952, their son, Jose de Borja, was appointed co-administrator. When
Francisco died, on 14 April 1954, Jose became the sole administrator of the testate
estate of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took
unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana
instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in
1955, she was appointed special administratrix. The validity of Tasiana's marriage to
Francisco was questioned in said proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has
been plagued with several court suits and counter-suits; including the three cases at
bar, some eighteen (18) cases remain pending determination in the courts. The testate
estate of Josefa Tangco alone has been unsettled for more than a quarter of a century.
In order to put an end to all these litigations, a compromise agreement was entered into
on 12 October 1963,2 by and between "[T]he heir and son of Francisco de Borja by his
first marriage, namely, Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by
his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty.
Luis Panaguiton Jr." The terms and conditions of the compromise agreement are as
follows:

AGREEMENT

THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage, namely, Jose
de Borja personally and as administrator of the Testate Estate of Josefa
Tangco,

AND

The heir and surviving spouse of Francisco de Borja by his second

marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty.
Luis Panaguiton Jr.

WITNESSETH

THAT it is the mutual desire of all the parties herein terminate and settle,
with finality, the various court litigations, controversies, claims,
counterclaims, etc., between them in connection with the administration,
settlement, partition, adjudication and distribution of the assets as well as
liabilities of the estates of Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja.

THAT with this end in view, the parties herein have agreed voluntarily and
without any reservations to enter into and execute this agreement under
the following terms and conditions:

1. That the parties agree to sell the Poblacion portion of the Jalajala
properties situated in Jalajala, Rizal, presently under administration in the
Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more
specifically described as follows:

Linda al Norte con el Rio Puwang que la separa de la

jurisdiccion del Municipio de Pililla de la Provincia de Rizal, y
con el pico del Monte Zambrano; al Oeste con Laguna de
Bay; por el Sur con los herederos de Marcelo de Borja; y por
el Este con los terrenos de la Familia Maronilla

with a segregated area of approximately 1,313 hectares at the amount of

P0.30 per square meter.

2. That Jose de Borja agrees and obligates himself to pay Tasiana

Ongsingco Vda. de de Borja the total amount of Eight Hundred Thousand
Pesos (P800,000) Philippine Currency, in cash, which represent P200,000
as his share in the payment and P600,000 as pro-rata shares of the heirs
Crisanto, Cayetano and Matilde, all surnamed de Borja and this shall be
considered as full and complete payment and settlement of her hereditary
share in the estate of the late Francisco de Borja as well as the estate of
Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-
Rizal, respectively, and to any properties bequeathed or devised in her
favor by the late Francisco de Borja by Last Will and Testament or by
Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for
consideration or otherwise. The funds for this payment shall be taken from
and shall depend upon the receipt of full payment of the proceeds of the
sale of Jalajala, "Poblacion."

3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of

that particular obligation incurred by the late Francisco de Borja in favor of
the Rehabilitation Finance Corporation, now Development Bank of the
Philippines, amounting to approximately P30,000.00 and also assumes
payment of her 1/5 share of the Estate and Inheritance taxes on the
Estate of the late Francisco de Borja or the sum of P3,500.00, more or
less, which shall be deducted by the buyer of Jalajala, "Poblacion" from
the payment to be made to Tasiana Ongsingco Vda. de Borja under
paragraph 2 of this Agreement and paid directly to the Development Bank
of the Philippines and the heirs-children of Francisco de Borja.

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay

directly to Tasiana Ongsingco Vda. de de Borja the balance of the
payment due her under paragraph 2 of this Agreement (approximately
P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de
Borja, corresponding certified checks/treasury warrants, who, in turn, will
issue the corresponding receipt to Jose de Borja.

5. In consideration of above payment to Tasiana Ongsingco Vda. de de

Borja, Jose de Borja personally and as administrator of the Testate Estate
of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for
themselves and for their heirs, successors, executors, administrators, and
assigns, hereby forever mutually renounce, withdraw, waive, remise,
release and discharge any and all manner of action or actions, cause or
causes of action, suits, debts, sum or sums of money, accounts,
damages, claims and demands whatsoever, in law or in equity, which they
ever had, or now have or may have against each other, more specifically
Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-
Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No.
7452-CFI, Rizal, as well as the case filed against Manuel Quijal for perjury
with the Provincial Fiscal of Rizal, the intention being to completely,
absolutely and finally release each other, their heirs, successors, and
assigns, from any and all liability, arising wholly or partially, directly or
indirectly, from the administration, settlement, and distribution of the
assets as well as liabilities of the estates of Francisco de Borja and Josefa
Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco
Vda. de de Borja expressly and specifically renounce absolutely her rights
as heir over any hereditary share in the estate of Francisco de Borja.

6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment

under paragraph 4 hereof, shall deliver to the heir Jose de Borja all the
papers, titles and documents belonging to Francisco de Borja which are in
her possession and said heir Jose de Borja shall issue in turn the
corresponding receive thereof.

7. That this agreement shall take effect only upon the fulfillment of the sale
of the properties mentioned under paragraph 1 of this agreement and
upon receipt of the total and full payment of the proceeds of the sale of the
Jalajala property "Poblacion", otherwise, the non-fulfillment of the said
sale will render this instrument NULL AND VOID AND WITHOUT EFFECT
THEREAFTER.

IN WITNESS WHEREOF, the parties hereto have her unto set their hands
in the City of Manila, Philippines, the 12th of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12
October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866;
and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special
Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances.
The Rizal court approved the compromise agreement, but the Nueva Ecija court
declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de
de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case
No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R.
case No. L-28568) by the Court of First Instance of Nueva Ecija.

The genuineness and due execution of the compromised agreement of 12 October

1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on
the ground that: (1) the heirs cannot enter into such kind of agreement without first
probating the will of Francisco de Borja; (2) that the same involves a compromise on the
validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3)
that even if it were valid, it has ceased to have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and
the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara.
74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for
probate is mandatory and that the settlement and distribution of an estate on the basis
of intestacy when the decedent left a will, is against the law and public policy. It is
likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the
Revised Rules explicitly conditions the validity of an extrajudicial settlement of a
decedent's estate by agreement between heirs, upon the facts that "(if) the decedent left
no will and no debts, and the heirs are all of age, or the minors are represented by their
judicial and legal representatives ..." The will of Francisco de Borja having been
submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement
was made, those circumstances, it is argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de
Borja stresses that at the time it was entered into, on 12 October 1963, the governing
provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed
the extrajudicial settlement of the estate of a deceased person regardless of whether he
left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara
vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's will, the probate of the will is
a useless ceremony; and if they have divided the estate in a different manner, the
probate of the will is worse than useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is
apparent from an examination of the terms of the agreement between Jose de Borja
and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the
sum of P800,000 payable to Tasiana Ongsingco
 shall be considered as full complete payment settlement of her
hereditary share in the estate of the late Francisco de Borja as well as the
estate of Josefa Tangco, ... and to any properties bequeathed or devised
in her favor by the late Francisco de Borja by Last Will and Testament or
by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for
consideration or otherwise.

This provision evidences beyond doubt that the ruling in the Guevara case is not
applicable to the cases at bar. There was here no attempt to settle or distribute the
estate of Francisco de Borja among the heirs thereto before the probate of his
will. The clear object of the contract was merely the conveyance by Tasiana
Ongsingco of any and all her individual share and interest, actual or eventual in
the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to
any other claimant, creditor or legatee. And as a hereditary share in a decedent's
estate is transmitted or vested immediately from the moment of the death of
such causante or predecessor in interest (Civil Code of the Philippines, Art.
777)3 there is no legal bar to a successor (with requisite contracting capacity)
disposing of her or his hereditary share immediately after such death, even if the
actual extent of such share is not determined until the subsequent liquidation of
the estate.4 Of course, the effect of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir. However, the aleatory character of the
contract does not affect the validity of the transaction; neither does the coetaneous
agreement that the numerous litigations between the parties (the approving order of the
Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered
settled and should be dismissed, although such stipulation, as noted by the Rizal Court,
gives the contract the character of a compromise that the law favors, for obvious
reasons, if only because it serves to avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco
de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the
present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her
successional interest existed independent of Francisco de Borja's last will and
testament and would exist even if such will were not probated at all. Thus, the
prerequisite of a previous probate of the will, as established in the Guevara and
analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de
Borja.

Since the compromise contract Annex A was entered into by and between "Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the
one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction
was binding on both in their individual capacities, upon the perfection of the contract,
even without previous authority of the Court to enter into the same. The only difference
between an extrajudicial compromise and one that is submitted and approved by the
Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil
Code is explicit on the point:
 8. Art. 2037. A compromise has upon the parties the effect and authority
of res judicata; but there shall be no execution except in compliance with a
judicial compromise.

It is argued by Tasiana Ongsingco that while the agreement Annex A

expressed no definite period for its performance, the same
was intended to have a resolutory period of 60 days for its effectiveness.
In support of such contention, it is averred that such a limit was expressly
stipulated in an agreement in similar terms entered into by said Ongsingco
with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and
Cayetano, all surnamed de Borja, except that the consideration was fixed
at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and
which contained the following clause:

III. That this agreement shall take effect only upon the consummation of
the sale of the property mentioned herein and upon receipt of the total and
full payment of the proceeds of the sale by the herein owner heirs-children
of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all
surnamed de Borja; Provided that if no sale of the said property mentioned
herein is consummated, or the non-receipt of the purchase price thereof
by the said owners within the period of sixty (60) days from the date
hereof, this agreement will become null and void and of no further effect.

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a
party to this particular contract (Annex 1), and that the same appears not to have been
finalized, since it bears no date, the day being left blank "this day of October 1963";
and while signed by the parties, it was not notarized, although plainly intended to be so
done, since it carries a proposed notarial ratification clause. Furthermore, the
compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore
transcribed that of the total consideration of P800, 000 to be paid to Ongsingco,
P600,000 represent the "prorata share of the heirs Crisanto, Cayetano and Matilde all
surnamed de Borja" which corresponds to the consideration of P600,000 recited in
Annex 1, and that circumstance is proof that the duly notarized contract entered into wit
Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb and
supersede the separate unformalize agreement with the other three Borja heirs. Hence,
the 60 days resolutory term in the contract with the latter (Annex 1) not being repeated
in Annex A, can not apply to the formal compromise with Jose de Borja. It is moreover
manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made
within sixty days from the date of the agreement with Jose de Borja's co-heirs (Annex 1)
was plainly omitted in Annex A as improper and ineffective, since the Hacienda de
Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to Ongsingco
for her share formed part of the estate of Francisco de Borja and could not be sold until
authorized by the Probate Court. The Court of First Instance of Rizal so understood it,
and in approving the compromise it fixed a term of 120 days counted from the finality of
the order now under appeal, for the carrying out by the parties for the terms of the
contract.
This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to
approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco
was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court,
but she was an heir of Francisco de Borja, whose estate was the object of Special
Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is
irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in
the estate of her late husband, not the estate itself; and as already shown, that eventual
share she owned from the time of Francisco's death and the Court of Nueva Ecija could
not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose
of it in favor of whomsoever she chose. Such alienation is expressly recognized and
provided for by article 1088 of the present Civil Code:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they
were notified in writing of the sale of the vendor.

If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a
coheir could not be forbidden.

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is
void because it amounts to a compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the very opening paragraph of the
agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de
Borja", which is in itself definite admission of her civil status. There is nothing in the text
of the agreement that would show that this recognition of Ongsingco's status as the
surviving spouse of Francisco de Borja was only made in consideration of the cession of
her hereditary rights.

It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of

Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832
(Amended Record on Appeal in L-28568, page 157), that the compromise agreement of
13 October 1963 (Annex "A") had been abandoned, as shown by the fact that, after its
execution, the Court of First Instance of Nueva Ecija, in its order of 21 September 1964,
had declared that "no amicable settlement had been arrived at by the parties", and that
Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed
amicable settlement "had failed to materialize".

It is difficult to believe, however, that the amicable settlement referred to in the order
and motion above-mentioned was the compromise agreement of 13 October 1963,
which already had been formally signed and executed by the parties and duly notarized.
What the record discloses is that some time after its formalization, Ongsingco had
unilaterally attempted to back out from the compromise agreement, pleading various
reasons restated in the opposition to the Court's approval of Annex "A" (Record on
Appeal, L-20840, page 23): that the same was invalid because of the lapse of the
allegedly intended resolutory period of 60 days and because the contract was not
preceded by the probate of Francisco de Borja's will, as required by this
Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise affecting
Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections
have been already discussed. It was natural that in view of the widow's attitude, Jose de
Borja should attempt to reach a new settlement or novatory agreement before seeking
judicial sanction and enforcement of Annex "A", since the latter step might ultimately
entail a longer delay in attaining final remedy. That the attempt to reach another
settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja
quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and it is
more than probable that the order of 21 September 1964 and the motion of 17 June
1964 referred to the failure of the parties' quest for a more satisfactory compromise. But
the inability to reach a novatory accord can not invalidate the original compromise
(Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its
approval and enforcement from the Court of First Instance of Rizal, which, as heretofore
described, decreed that the agreement be ultimately performed within 120 days from
the finality of the order, now under appeal.

We conclude that in so doing, the Rizal court acted in accordance with law, and,
therefore, its order should be upheld, while the contrary resolution of the Court of First
Instance of Nueva Ecija should be, and is, reversed.

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has
affected her unfavorably, in that while the purchasing power of the agreed price of
P800,000 has diminished, the value of the Jalajala property has increased. But the fact
is that her delay in receiving the payment of the agreed price for her hereditary interest
was primarily due to her attempts to nullify the agreement (Annex "A") she had formally
entered into with the advice of her counsel, Attorney Panaguiton. And as to the
devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561,
30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a
revaluation with every subsequent fluctuation in the values of currency and properties of
the estate", is particularly opposite in the present case.

Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala
(Poblacion), concededly acquired by Francisco de Borja during his marriage to his first
wife, Josefa Tangco, is the husband's private property (as contended by his second
spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial)
partnership with Josefa Tangco. The Court of First Instance of Rizal (Judge Herminio
Mariano, presiding) declared that there was adequate evidence to overcome the
presumption in favor of its conjugal character established by Article 160 of the Civil
Code.

We are of the opinion that this question as between Tasiana Ongsingco and Jose de
Borja has become moot and academic, in view of the conclusion reached by this Court
in the two preceding cases (G.R. No. L-28568), upholding as valid the cession of
Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de
Borja, for the sum of P800,000 with the accompanying reciprocal quit-claims between
the parties. But as the question may affect the rights of possible creditors and legatees,
its resolution is still imperative.

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been
originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de
Borja and their title thereto was duly registered in their names as co-owners in Land
Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo
vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned among the
co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to
Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to
Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).

The lot allotted to Francisco was described as

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E.

Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay;
containing an area of 13,488,870 sq. m. more or less, assessed at
P297,410. (Record on Appeal, pages 7 and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate

Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal
(Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa
Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described
declared exclusive private property of Francisco, while in his answer defendant (now
appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco
de Borja and Josefa Tangco), conformably to the presumption established by Article
160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to
the effect that:

Art. 160. All property of the marriage is presumed to belong to the

conjugal partnership, unless it be proved that it pertains exclusively to the
husband or to the wife.

Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and
exemplary, as well as for attorney's fees.

After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the
plaintiff had adduced sufficient evidence to rebut the presumption, and declared the
Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late
Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be
entitled to its possession. Defendant Jose de Borja then appealed to this Court.

The evidence reveals, and the appealed order admits, that the character of the
Hacienda in question as owned by the conjugal partnership De Borja-Tangco was
solemnly admitted by the late Francisco de Borja no less than two times: first, in the
Reamended Inventory that, as executor of the estate of his deceased wife Josefa
Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance of
Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the
same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff
Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa Tangco,
submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala
property among the "Conjugal Properties of the Spouses Francisco de Borja and Josefa
Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of
Francisco de Borja, in Special Proceedings No. 832 of the Court of First Instance of
Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed the
Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses
Francisco de Borja and Josefa Tangco, which are in the possession of the Administrator
of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No. 7866
of the Court of First Instance of Rizal" (Exhibit "4").

Notwithstanding the four statements aforesaid, and the fact that they are plain
admissions against interest made by both Francisco de Borja and the Administratrix of
his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts,
supporting the legal presumption in favor of the conjugal community, the Court below
declared that the Hacienda de Jalajala (Poblacion) was not conjugal property, but the
private exclusive property of the late Francisco de Borja. It did so on the strength of the
following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951
(Exhibit "F") that

He tomado possession del pedazo de terreno ya delimitado (equivalente a

1/4 parte, 337 hectareas) adjunto a mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal).

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire
Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount
P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that
upon receipt of a subsequent demand from the provincial treasurer for realty taxes the
sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of Marcelo)
wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo
issue a check for P17,000.00 to pay the back taxes and said that the amount would
represent Francisco's contribution in the purchase of the Hacienda. The witness further
testified that

Marcelo de Borja said that that money was entrusted to him by Francisco
de Borja when he was still a bachelor and which he derived from his
business transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15)
(Emphasis supplied)

The Court below, reasoning that not only Francisco's sworn statement overweighed the
admissions in the inventories relied upon by defendant-appellant Jose de Borja since
probate courts can not finally determine questions of ownership of inventoried property,
but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his
share of the original Hacienda with his private funds, for which reason that share can
not be regarded as conjugal partnership property, but as exclusive property of the
buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil
Code of the Philippines.

The following shall be the exclusive property of each spouse:

xxx xxx xxx

(4) That which is purchased with exclusive money of the wife or of the
husband.

We find the conclusions of the lower court to be untenable. In the first place, witness
Gregorio de Borja's testimony as to the source of the money paid by Francisco for his
share was plain hearsay, hence inadmissible and of no probative value, since he was
merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of
ascertaining the truth of the statement, since both Marcelo and Francisco de Borja were
already dead when Gregorio testified. In addition, the statement itself is improbable,
since there was no need or occasion for Marcelo de Borja to explain to Gregorio how
and when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A ring
of artificiality is clearly discernible in this portion of Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page
14) does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de
Jalajala, Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits 3
and 4) disclose that there were two real properties in Jalajala owned by Francisco de
Borja, one of 72.038 sq. m., assessed at P44,600, and a much bigger one of
1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which
of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition,
Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly
self-serving, and not admissible in the absence of cross examination.

It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3",
"4" and "7") are not conclusive on the conjugal character of the property in question; but
as already noted, they are clear admissions against the pecuniary interest of the
declarants, Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as
such of much greater probative weight than the self-serving statement of Francisco
(Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of the
Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually
confirmed by proof. Hence, the appealed order should be reversed and the Hacienda de
Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de Borja
and Josefa Tangco.
No error having been assigned against the ruling of the lower court that claims for
damages should be ventilated in the corresponding special proceedings for the
settlement of the estates of the deceased, the same requires no pro announcement
from this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of
Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-
28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio

and Esguerra, JJ., concur.

Fernando, J., took no part.

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

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO

BONILLA (their father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL
BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO
GIRONELLA of the Court of First Instance of Abra, respondents.

Federico Paredes for petitioners.

Demetrio V. Pre for private respondents.

MARTIN, J:

This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil
Case No. 856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions
for reconsideration of its order dismissing the complaint in the aforementioned case.

On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion
Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance
of Abra, to quiet title over certain parcels of land located in Abra.

On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before
the hearing of the motion to dismiss, the counsel for the plaintiff moved to amend the
complaint in order to include certain allegations therein. The motion to amend the
complaint was granted and on July 17, 1975, plaintiffs filed their amended complaint.

On August 4, 1975, the defendants filed another motion to dismiss the complaint on the
ground that Fortunata Barcena is dead and, therefore, has no legal capacity to sue.
Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the
plaintiff confirmed the death of Fortunata Barcena, and asked for substitution by her
minor children and her husband, the petitioners herein; but the court after the hearing
immediately dismissed the case on the ground that a dead person cannot be a real
party in interest and has no legal personality to sue.

On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the
complaint and on August 23, 1975, he moved to set aside the order of the dismissal
pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court. 2

On August 28, 1975, the court denied the motion for reconsideration filed by counsel for
the plaintiff for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed
a written manifestation praying that the minors Rosalio Bonilla and Salvacion Bonilla be
allowed to substitute their deceased mother, but the court denied the counsel's prayer
for lack of merit. From the order, counsel for the deceased plaintiff filed a second motion
for reconsideration of the order dismissing the complaint claiming that the same is in
violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the same was
denied.

Hence, this petition for review.

The Court reverses the respondent Court and sets aside its order dismissing the
complaint in Civil Case No. 856 and its orders denying the motion for reconsideration of
said order of dismissal. While it is true that a person who is dead cannot sue in court,
yet he can be substituted by his heirs in pursuing the case up to its completion. The
records of this case show that the death of Fortunata Barcena took place on July 9,
1975 while the complaint was filed on March 31, 1975. This means that when the
complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore,
the court had acquired jurisdiction over her person. If thereafter she died, the Rules of
Court prescribes the procedure whereby a party who died during the pendency of the
proceeding can be substituted. Under Section 16, Rule 3 of the Rules of Court
"whenever a party to a pending case dies ... it shall be the duty of his attorney to inform
the court promptly of such death ... and to give the name and residence of his executor,
administrator, guardian or other legal representatives." This duty was complied with by
the counsel for the deceased plaintiff when he manifested before the respondent Court
that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of
parties in the case. The respondent Court, however, instead of allowing the substitution,
dismissed the complaint on the ground that a dead person has no legal personality to
sue. This is a grave error. Article 777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of the decedent." From the
moment of the death of the decedent, the heirs become the absolute owners of his
property, subject to the rights and obligations of the decedent, and they cannot be
deprived of their rights thereto except by the methods provided for by law. 3 The
moment of death is the determining factor when the heirs acquire a definite right to the
inheritance whether such right be pure or contingent. 4 The right of the heirs to the
property of the deceased vests in them even before judicial declaration of their being
heirs in the testate or intestate proceedings. 5 When Fortunata Barcena, therefore, died
her claim or right to the parcels of land in litigation in Civil Case No. 856, was not
extinguished by her death but was transmitted to her heirs upon her death. Her heirs
have thus acquired interest in the properties in litigation and became parties in interest
in the case. There is, therefore, no reason for the respondent Court not to allow their
substitution as parties in interest for the deceased plaintiff.

Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice, the legal representative
of the deceased to appear and be substituted for the deceased, within such time as may
be granted ... ." The question as to whether an action survives or not depends on the
nature of the action and the damage sued for. 6 In the causes of action which survive
the wrong complained affects primarily and principally property and property rights, the
injuries to the person being merely incidental, while in the causes of action which do not
survive the injury complained of is to the person, the property and rights of property
affected being incidental. 7 Following the foregoing criterion the claim of the deceased
plaintiff which is an action to quiet title over the parcels of land in litigation affects
primarily and principally property and property rights and therefore is one that survives
even after her death. It is, therefore, the duty of the respondent Court to order the legal
representative of the deceased plaintiff to appear and to be substituted for her. But what
the respondent Court did, upon being informed by the counsel for the deceased plaintiff
that the latter was dead, was to dismiss the complaint. This should not have been done
for under the same Section 17, Rule 3 of the Rules of Court, it is even the duty of the
court, if the legal representative fails to appear, to order the opposing party to procure
the appointment of a legal representative of the deceased. In the instant case the
respondent Court did not have to bother ordering the opposing party to procure the
appointment of a legal representative of the deceased because her counsel has not
only asked that the minor children be substituted for her but also suggested that their
uncle be appointed as guardian ad litem for them because their father is busy in Manila
earning a living for the family. But the respondent Court refused the request for
substitution on the ground that the children were still minors and cannot sue in court.
This is another grave error because the respondent Court ought to have known that
under the same Section 17, Rule 3 of the Rules of Court, the court is directed to appoint
a guardian ad litem for the minor heirs. Precisely in the instant case, the counsel for the
deceased plaintiff has suggested to the respondent Court that the uncle of the minors
be appointed to act as guardian ad litem for them. Unquestionably, the respondent
Court has gravely abused its discretion in not complying with the clear provision of the
Rules of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and
refusing the substitution of parties in the case.

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

SO ORDERED.

Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.

Footnotes

1 Which this Court treats as special civil action as per its Resolution dated
February 11, 1976.

2 Section 16. Duty of Attorney upon which death, incapacity or

incompetency of party. - Whenever a party to a pending case dies,
becomes incapacitated or incompetent, it shall be the duty of his attorney
to inform the court promptly of such death, incapacity or incompetency,
and to give the name and residence of his executor, administrator,
guardian or other legal representative.

Section 17. Death of party.After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and to be substituted for
deceased, within a period of thirty (30) days, or within such time as may
be granted. If the legal representative fails to appear within said time, the
court may order the opposing party to procure the appointment of a legal
representative of the within a time to be specified by the court, and the
representative shall immediately appear for and on behalf of the interest of
the deceased. The court charges involved in procuring such appointment,
if defrayed by the opposing party, may be recovered as costs. The heirs of
the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court
may appoint guardian ad litem for the minor heirs.

3 Buan vs. Heirs of Buan, 53 Phil. 654.

4 Ibarle vs. Po, 92 Phil. 721.

5 Morales, et al. vs. Ybanez, 98 Phil. 677.

6 Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT 529, 46 L. ed. 739.

7 Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39 C.C.A. 79.
G.R. No. L-41171 July 23, 1987

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEO-

HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the Court
of First Instance of Cebu, Branch II, respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-55000 July 23, 1987

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

BORROMEO, MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE BORROMEO,
CONSUELO B. MORALES, AND CANUTO V. BORROMEO, JR., heirs-appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-62895 July 23, 1987

JOSE CUENCO BORROMEO, petitioner,

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

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-63818 July 23, 1987

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

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

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-65995 July 23, 1987

PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and
JOSE CUENCO BORROMEO,petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV, Regional
Trial Court of Cebu; RICARDO V. REYES, Administrator of the Estate of VITO
BORROMEO in Sp. Proc. No. 916-R; and DOMINGO L. ANTIGUA, respondents.

GUTIERREZ, JR., J.:

These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First
Instance of Cebu.

G.R. No. 41171

Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13,
1952, in Paranaque, Rizal at the age of 88 years, without forced heirs but leaving
extensive properties in the province of Cebu.

On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition
for the probate of a one page document as the last will and testament left by the said
deceased, devising all his properties to Tomas, Fortunato and Amelia, all surnamed
Borromeo, in equal and undivided shares, and designating Junquera as executor
thereof. The case was docketed as Special Proceedings No. 916-R. The document,
drafted in Spanish, was allegedly signed and thumbmarked by the deceased in the
presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted
as witnesses.

Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the
probate court held that the document presented as the will of the deceased was a
forgery.

On appeal to this Court, the decision of the probate court disallowing the probate of the
will was affirmed in Testate Estate of Vito Borromeo, Jose H. Junquera et al. v. Crispin
Borromeo et al. (19 SCRA 656).

The testate proceedings was converted into an intestate proceedings. Several parties
came before the court filing claims or petitions alleging themselves as heirs of the
intestate estate of Vito Borromeo.

The following petitions or claims were filed:

1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo
filed a petition for declaration of heirs and determination of heirship. There was
no opposition filed against said petition.
 2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration
as heir. The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an
opposition to this petition.

3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro,

Ramon Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario
Morre, Aurora Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed a
petition for declaration of heirs and determination of shares. The petition was
opposed by the heirs of Jose and Cosme Borromeo.

4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda

Borromeo Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a
claim. Jose Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the
heirs of Carlos Borromeo represented by Jose Talam filed oppositions to this
claim.

When the aforementioned petitions and claims were heard jointly, the following facts
were established:

1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having
predeceased the former), were survived by their eight (8) children, namely,

Jose Ma. Borromeo

Cosme Borromeo

Pantaleon Borromeo

Vito Borromeo

Paulo Borromeo

Anecita Borromeo

Quirino Borromeo and

Julian Borromeo

2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his
brothers and sisters predeceased him.

3. Vito's brother Pantaleon Borromeo died leaving the following children:

a. Ismaela Borromeo,who died on Oct. 16, 1939

 b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito
Borromeo. He was married to Remedios Cuenco Borromeo, who died on March
28, 1968. He had an only son-Atty. Jose Cuenco Borromeo one of the petitioners
herein. (grandson of vito)

c. Crispin Borromeo, who is still alive.

4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left an only
daughter, Aurora B. Ocampo, who died on Jan. 30, 1950 leaving the following children:

a. Anecita Ocampo Castro

b. Ramon Ocampo

c. Lourdes Ocampo

d. Elena Ocampo, all living, and

e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose

Barcenilla, Jr.

5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left the
following children:

a. Marcial Borromeo

b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife, Remedios

Alfonso, and his only daughter, Amelinda Borromeo Talam

c. Asuncion Borromeo

d. Florentina Borromeo, who died in 1948.

e. Amilio Borromeo, who died in 1944.

f. Carmen Borromeo, who died in 1925.

The last three died leaving no issue.

6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and left
the following children:

a. Exequiel Borromeo,who died on December 29, 1949

b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:
 aa. Federico Borromeo

bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)

cc. Canuto Borromeo, Jr.

dd. Jose Borromeo

ee. Consuelo Borromeo

ff. Pilar Borromeo

gg. Salud Borromeo

hh. Patrocinio Borromeo Herrera

c. Maximo Borromeo, who died in July, 1948

d. Matilde Borromeo, who died on Aug. 6, 1946

e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:

aa. Maria Borromeo Atega

bb. Luz Borromeo

cc. Hermenegilda Borromeo Nonnenkamp

dd. Rosario Borromeo

ee. Fe Borromeo Queroz

On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order
declaring the following, to the exclusion of all others, as the intestate heirs of the
deceased Vito Borromeo:

1. Jose Cuenco Borromeo

2. Judge Crispin Borromeo

3. Vitaliana Borromeo

4. Patrocinio Borromeo Herrera

5. Salud Borromeo
 6. Asuncion Borromeo

7. Marcial Borromeo

8. Amelinda Borromeo de Talam, and

9. The heirs of Canuto Borromeo

The court also ordered that the assets of the intestate estate of Vito Borromeo shall be
divided into 4/9 and 5/9 groups and distributed in equal and equitable shares among the
9 abovenamed declared intestate heirs.

On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B.
Herrera, signed an agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order of August 15, 1969. In this
same order, the trial court ordered the administrator, Atty Jesus Gaboya, Jr., to partition
the properties of the deceased in the way and manner they are divided and partitioned
in the said Agreement of Partition and further ordered that 40% of the market value of
the 4/9 and 5/9 of the estate shall be segregated. All attorney's fees shall be taken and
paid from this segregated portion.

On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as heir
under the forged will, filed a motion before the trial court praying that he be declared as
one of the heirs of the deceased Vito Borromeo, alleging that he is an illegitimate son of
the deceased and that in the declaration of heirs made by the trial court, he was
omitted, in disregard of the law making him a forced heir entitled to receive a legitime
like all other forced heirs. As an acknowledged illegitimate child, he stated that he was
entitled to a legitime equal in every case to four-fifths of the legitime of an
acknowledged natural child.

Finding that the motion of Fortunato Borromeo was already barred by the order of the
court dated April 12, 1969 declaring the persons named therein as the legal heirs of the
deceased Vito Borromeo, the court dismissed the motion on June 25, 1973.

Fortunato Borromeo filed a motion for reconsideration. In the memorandum he

submitted to support his motion for reconsideration, Fortunato changed the basis for his
claim to a portion of the estate. He asserted and incorporated a Waiver of Hereditary
Rights dated July 31, 1967, supposedly signed by Pilar N. Borromeo, Maria B. Putong,
Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo, Patrocinio Borromeo-
Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo, Consuelo B.
Morales, Remedios Alfonso and Amelinda B. Talam In the waiver, five of the nine heirs
relinquished to Fortunato their shares in the disputed estate. The motion was opposed
on the ground that the trial court, acting as a probate court, had no jurisdiction to take
cognizance of the claim; that respondent Fortunato Borromeo is estopped from
asserting the waiver agreement; that the waiver agreement is void as it was executed
before the declaration of heirs; that the same is void having been executed before the
distribution of the estate and before the acceptance of the inheritance; and that it is
void ab initio and inexistent for lack of subject matter.

On December 24, 1974, after due hearing, the trial court concluding that the five
declared heirs who signed the waiver agreement assigning their hereditary rights to
Fortunato Borromeo had lost the same rights, declared the latter as entitled to 5/9 of the
estate of Vito Borromeo.

A motion for reconsideration of this order was denied on July 7, 1975.

In the present petition, the petitioner seeks to annul and set aside the trial court's order
dated December 24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of
the estate of Vito Borromeo and the July 7, 1975 order, denying the motion for
reconsideration.

The petitioner argues that the trial court had no jurisdiction to take cognizance of the
claim of respondent Fortunato Borromeo because it is not a money claim against the
decedent but a claim for properties, real and personal, which constitute all of the shares
of the heirs in the decedent's estate, heirs who allegedly waived their rights in his favor.
The claim of the private respondent under the waiver agreement, according to the
petitioner, may be likened to that of a creditor of the heirs which is improper. He alleges
that the claim of the private respondent under the waiver agreement was filed beyond
the time allowed for filing of claims as it was filed only sometime in 1973, after there had
been a declaration of heirs (April 10, 1969), an agreement of partition (April 30, 1969),
the approval of the agreement of partition and an order directing the administrator to
partition the estate (August 15, 1969), when in a mere memorandum, the existence of
the waiver agreement was brought out.

It is further argued by the petitioner that the document entitled " waiver of Hereditary
Rights" executed on July 31, 1967, aside from having been cancelled and revoked on
June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo, is
without force and effect because there can be no effective waiver of hereditary rights
before there has been a valid acceptance of the inheritance the heirs intend to transfer.
Pursuant to Article 1043 of the Civil Code, to make acceptance or repudiation of
inheritance valid, the person must be certain of the death of the one from whom he is to
inherit and of his right to the inheritance. Since the petitioner and her co-heirs were not
certain of their right to the inheritance until they were declared heirs, their rights were,
therefore, uncertain. This view, according to the petitioner, is also supported by Article
1057 of the same Code which directs heirs, devicees, and legatees to signify their
acceptance or repudiation within thirty days after the court has issued an order for the
distribution of the estate.

Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of
the Civil Code there is no need for a person to be first declared as heir before he can
accept or repudiate an inheritance. What is required is that he must first be certain of
the death of the person from whom he is to inherit and that he must be certain of his
right to the inheritance. He points out that at the time of the signing of the waiver
document on July 31, 1967, the signatories to the waiver document were certain that
Vito Borromeo was already dead as well as of their rights to the inheritance as shown in
the waiver document itself.

With respect to the issue of jurisdiction of the trial court to pass upon the validity of the
waiver of hereditary rights, respondent Borromeo asserts that since the waiver or
renunciation of hereditary rights took place after the court assumed jurisdiction over the
properties of the estate it partakes of the nature of a partition of the properties of the
estate needing approval of the court because it was executed in the course of the
proceedings. lie further maintains that the probate court loses jurisdiction of the estate
only after the payment of all the debts of the estate and the remaining estate is
distributed to those entitled to the same.

The prevailing jurisprudence on waiver of hereditary rights is that "the properties

included in an existing inheritance cannot be considered as belonging to third persons
with respect to the heirs, who by fiction of law continue the personality of the former.
Nor do such properties have the character of future property, because the heirs acquire
a right to succession from the moment of the death of the deceased, by principle
established in article 657 and applied by article 661 of the Civil Code, according to
which the heirs succeed the deceased by the mere fact of death. More or less, time may
elapse from the moment of the death of the deceased until the heirs enter into
possession of the hereditary property, but the acceptance in any event retroacts to the
moment of the death, in accordance with article 989 of the Civil Code. The right is
vested, although conditioned upon the adjudication of the corresponding hereditary
portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs,
therefore, could waive their hereditary rights in 1967 even if the order to partition
the estate was issued only in 1969.

In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered
to be effective. For a waiver to exist, three elements are essential: (1) the existence of a
right; (2) the knowledge of the existence thereof; and (3) an intention to relinquish such
right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a
right or advantage must be shown clearly and convincingly, and when the only proof of
intention rests in what a party does, his act should be so manifestly consistent with, and
indicative of an intent to, voluntarily relinquish the particular right or advantage that no
other reasonable explanation of his conduct is possible (67 C.J., 311). (Fernandez v.
Sebido, et al., 70 Phil., 151, 159).

The circumstances of this case show that the signatories to the waiver document did not
have the clear and convincing intention to relinquish their rights, Thus: (1) On October
27, 1967. Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled
"Compliance" wherein they submitted a proposal for the amicable settlement of the
case. In that Compliance, they proposed to concede to all the eight (8) intestate heirs of
Vito Borromeo all properties, personal and real, including all cash and sums of money in
the hands of the Special Administrator, as of October 31, 1967, not contested or
claimed by them in any action then pending in the Court of First Instance of Cebu. In
turn, the heirs would waive and concede to them all the 14 contested lots. In this
document, the respondent recognizes and concedes that the petitioner, like the other
signatories to the waiver document, is an heir of the deceased Vito Borromeo, entitled
to share in the estate. This shows that the "Waiver of Hereditary Rights" was never
meant to be what the respondent now purports it to be. Had the intent been otherwise,
there would not be any reason for Fortunato, Tomas, and Amelia Borromeo to mention
the heirs in the offer to settle the case amicably, and offer to concede to them parts of
the estate of the deceased; (2) On April 21 and 30, 1969, the majority of the declared
heirs executed an Agreement on how the estate they inherited shall be distributed. This
Agreement of Partition was approved by the trial court on August 15, 1969; (3) On June
29, 1968, the petitioner, among others, signed a document entitled Deed of
Assignment" purporting to transfer and assign in favor of the respondent and Tomas
and Amelia Borromeo all her (Patrocinio B. Herrera's) rights, interests, and participation
as an intestate heir in the estate of the deceased Vito Borromeo. The stated
consideration for said assignment was P100,000.00; (4) On the same date, June 29,
1968, the respondent Tomas, and Amelia Borromeo (assignees in the aforementioned
deed of assignment) in turn executed a "Deed of Reconveyance" in favor of the heirs-
assignors named in the same deed of assignment. The stated consideration was
P50,000.00; (5) A Cancellation of Deed of Assignment and Deed of Reconveyance was
signed by Tomas Borromeo and Amelia Borromeo on October 15, 1968, while
Fortunato Borromeo signed this document on March 24, 1969.

With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction to
pass upon the validity of the waiver agreement. It must be noted that in Special
Proceedings No. 916-R the lower court disallowed the probate of the will and declared it
as fake. Upon appeal, this Court affirmed the decision of the lower court on March 30,
1967, in G.R. No. L-18498. Subsequently, several parties came before the lower court
filing claims or petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo. We see no impediment to the trial court in exercising jurisdiction and trying
the said claims or petitions. Moreover, the jurisdiction of the trial court extends to
matters incidental and collateral to the exercise of its recognized powers in handling the
settlement of the estate.

In view of the foregoing, the questioned order of the trial court dated December 24,
1974, is hereby SET ASIDE.

G.R. No. 55000

This case was originally an appeal to the Court of Appeals from an order of the Court of
First Instance of Cebu, Branch 11, dated December 24, 1974, declaring the waiver
document earlier discussed in G.R. No. 41171 valid. The appellate court certified this
case to this Court as the questions raised are all of law.
The appellants not only assail the validity of the waiver agreement but they also
question the jurisdiction of the lower court to hear and decide the action filed by
claimant Fortunato Borromeo.

The appellants argue that when the waiver of hereditary right was executed on July 31,
1967, Pilar Borromeo and her children did not yet possess or own any hereditary right in
the intestate estate of the deceased Vito Borromeo because said hereditary right was
only acquired and owned by them on April 10, 1969, when the estate was ordered
distributed.

They further argue that in contemplation of law, there is no such contract of waiver of
hereditary right in the present case because there was no object, which is hereditary
right, that could be the subject matter of said waiver, and, therefore, said waiver of
hereditary right was not only null and void ab initio but was inexistent.

With respect to the issue of jurisdiction, the appellants contend that without any formal
pleading filed by the lawyers of Fortunato Borromeo for the approval of the waiver
agreement and without notice to the parties concerned, two things which are necessary
so that the lower court would be vested with authority and jurisdiction to hear and
decide the validity of said waiver agreement, nevertheless, the lower court set the
hearing on September 25, 1973 and without asking for the requisite pleading. This
resulted in the issuance of the appealed order of December 24, 1974, which approved
the validity of the waiver agreement. The appellants contend that this constitutes an
error in the exercise of jurisdiction.

The appellee on the other hand, maintains that by waiving their hereditary rights in favor
of Fortunato Borromeo, the signatories to the waiver document tacitly and irrevocably
accepted the inheritance and by virtue of the same act, they lost their rights because the
rights from that moment on became vested in Fortunato Borromeo.

It is also argued by the appellee that under Article 1043 of the Civil Code there is no
need for a person to be declared as heir first before he can accept or repudiate an
inheritance. What is required is that he is certain of the death of the person from whom
he is to inherit, and of his right to the inheritance. At the time of the signing of the waiver
document on July 31, 1967, the signatories to the waiver document were certain that
Vito Borromeo was already dead and they were also certain of their right to the
inheritance as shown by the waiver document itself.

On the allegation of the appellants that the lower court did not acquire jurisdiction over
the claim because of the alleged lack of a pleading invoking its jurisdiction to decide the
claim, the appellee asserts that on August 23, 1973, the lower court issued an order
specifically calling on all oppositors to the waiver document to submit their comments
within ten days from notice and setting the same for hearing on September 25, 1973.
The appellee also avers that the claim as to a 5/9 share in the inheritance involves no
question of title to property and, therefore, the probate court can decide the question.
The issues in this case are similar to the issues raised in G.R. No. 41171. The
appellants in this case, who are all declared heirs of the late Vito Borromeo are
contesting the validity of the trial court's order dated December 24, 1974, declaring
Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo under the waiver
agreement.

As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be
validated. The essential elements of a waiver, especially the clear and convincing
intention to relinquish hereditary rights, are not found in this case.

The October 27, 1967 proposal for an amicable settlement conceding to all the eight (8)
intestate heirs various properties in consideration for the heirs giving to the respondent
and to Tomas, and Amelia Borromeo the fourteen (14) contested lots was filed inspite of
the fact that on July 31, 1967, some of the heirs had allegedly already waived or sold
their hereditary rights to the respondent.

The agreement on how the estate is to be distributed, the June 29, 1968 deed of
assignment, the deed of reconveyance, and the subsequent cancellation of the deed of
assignment and deed of reconveyance all argue against the purported waiver of
hereditary rights.

Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that the
trial court acquired jurisdiction to pass upon the validity of the waiver agreement
because the trial court's jurisdiction extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the estate.

The questioned order is, therefore, SET ASIDE.

G.R. No. 62895

A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative of
some of the heirs-distributees, praying for the immediate closure of Special Proceeding
No. 916-R. A similar motion dated May 29, 1979 was filed by Atty. Jose Amadora. Both
motions were grounded on the fact that there was nothing more to be done after the
payment of all the obligations of the estate since the order of partition and distribution
had long become final.

Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the
aforesaid motions, petitioner Jose Cuenco Borromeo-filed a petition for mandamus
before the Court of Appeals to compel the respondent judge to terminate and close
Special Proceedings No. 916-R.

Finding that the inaction of the respondent judge was due to pending motions to compel
the petitioner, as co-administrator, to submit an inventory of the real properties of the
estate and an accounting of the cash in his hands, pending claims for attorney's fees,
and that mandamus will not lie to compel the performance of a discretionary function,
the appellate court denied the petition on May 14, 1982. The petitioner's motion for
reconsideration was likewise denied for lack of merit. Hence, this petition.

The petitioner's stand is that the inaction of the respondent judge on the motion filed on
April 28, 1972 for the closure of the administration proceeding cannot be justified by the
filing of the motion for inventory and accounting because the latter motion was filed only
on March 2, 1979. He claimed that under the then Constitution, it is the duty of the
respondent judge to decide or resolve a case or matter within three months from the
date of its submission.

The respondents contend that the motion to close the administration had already been
resolved when the respondent judge cancelled all settings of all incidents previously set
in his court in an order dated June 4, 1979, pursuant to the resolution and restraining
order issued by the Court of Appeals enjoining him to maintain status quo on the case.

As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the
exception of Patrocinio B. Herrera, signed an agreement of partition of the properties of
the deceased Vito Borromeo which was approved by the trial court, in its order dated
August 15, 1969. In this same order, the trial court ordered the administrator, Atty.
Jesus Gaboya, Jr., to partition the properties of the deceased in the way and manner
they are divided and partitioned in the said Agreement of Partition and further ordered
that 40% of the market value of the 4/9 and 5/9 of the estate shall be segregated and
reserved for attorney's fees.

According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p. 197,
Rollo, G. R. No. 41171) his court has not finally distributed to the nine (9) declared heirs
the properties due to the following circumstances:

1. The court's determination of the market value of the estate in order to

segregate the 40% reserved for attorney's fees;

2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary

of the 5/9 of the estate because of the waiver agreement signed by the heirs
representing the 5/9 group which is still pending resolution by this Court (G.R.
No. 4117 1);

3. The refusal of administrator Jose Cuenco Borromeo to render his accounting;

and

4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of
notices of lis pendens on the different titles of the properties of the estate.

Since there are still real properties of the estate that were not vet distributed to some of
the declared heirs, particularly the 5/9 group of heirs due to the pending resolution of
the waiver agreement, this Court in its resolution of June 15, 1983, required the judge of
the Court of First Instance of Cebu, Branch 11, to expedite the determination of Special
Proceedings No. 916-R and ordered the co-administrator Jose Cuenco Borromeo to
submit an inventory of real properties of the estate and to render an accounting of cash
and bank deposits realized from rents of several properties.

The matter of attorney's fees shall be discussed in G.R. No. 65995.

Considering the pronouncements stated in:

1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court
dated December 24, 1974;

2. G.R. No. 63818, denying the petition for review seeking to modify the decision
of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo
and ordering the remand of the case to the Executive,Judge of the Regional trial
Court of Cebu for re-raffling; and

3. G.R. No. 65995, granting the petition to restrain the respondents from further
acting on any and all incidents in Special proceedings No. 916-11 because of the
affirmation of the decision of the Intermediate Appellate Court in G.R. No. 63818.

the trial court may now terminate and close Special Proceedings No. 916-R, subject to
the submission of an inventory of the real properties of the estate and an accounting of
the call and bank deposits of the petitioner, as co-administrator of the estate, if he has
not vet done so, as required by this Court in its Resolution dated June 15, 1983. This
must be effected with all deliberate speed.

G.R. No. 63818

On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a
motion for inhibition in the Court of First Instance of Cebu, Branch 11, presided over by
Judge Francisco P. Burgos to inhibit the judge from further acting in Special
Proceedings No. 916-R. 'The movants alleged, among others, the following:

xxx xxx xxx

6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the
production of the certificates of title and to deposit the same with the Branch
Clerk of Court, presumably for the ready inspection of interested buyers. Said
motion was granted by the Hon. Court in its order of October 2, 1978 which,
however, became the subject of various motions for reconsideration from heirs-
distributees who contended that as owners they cannot be deprived of their titles
for the flimsy reasons advanced by Atty, Antigua. In view of the motions for
reconsideration, Atty Antigua ultimately withdraw his motions for production of
titles.
 7. The incident concerning the production of titles triggered another incident
involving Atty. Raul H. Sesbreno who was then the counsel of herein movants
Petra O. Borromeo and Amelinda B. Talam In connection with said incident, Atty.
Sesbreno filed a pleading which the tion. presiding, Judge Considered direct
contempt because among others, Atty. Sesbreno insinuated that the Hon.
Presiding Judge stands to receive "fat commission" from the sale of the entire
property. Indeed, Atty. Sesbreno was seriously in danger of being declared in
contempt of court with the dim prospect of suspension from the practice of his
profession. But obviously to extricate himself from the prospect of contempt and
suspension. Atty. Sesbreno chose rapproachment and ultimately joined forces
with Atty. Antigua, et al., who, together, continued to harass administrator

xxx xxx xxx

9. The herein movants are informed and so they allege, that a brother of the Hon.
Presiding Judge is married to a sister of Atty. Domingo L. Antigua.

10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are
agitating for the sale of the entire estate or to buy out the individual heirs, on the
one hand, and the herein movants, on the other, who are not willing to sell their
distributive shares under the terms and conditions presently proposed. In this tug
of war, a pattern of harassment has become apparent against the herein
movants, especially Jose Cuenco Borromeo. Among the harassments employed
by Atty Antigua et al. are the pending motions for the removal of administrator
Jose Cuenco Borromeo, the subpoena duces tecum issued to the bank which
seeks to invade into the privacy of the personal account of Jose Cuenco
Borromeo, and the other matters mentioned in paragraph 8 hereof. More
harassment motions are expected until the herein movants shall finally yield to
the proposed sale. In such a situation, the herein movants beg for an entirely
independent and impartial judge to pass upon the merits of said incidents.

11. Should the Hon. Presiding Judge continue to sit and take cognizance of this
proceeding, including the incidents above-mentioned, he is liable to be
misunderstood as being biased in favor of Atty Antigua, et al. and prejudiced
against the herein movants. Incidents which may create this impression need not
be enumerated herein. (pp. 39-41, Rollo)

The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for
reconsideration having been denied, the private respondents filed a petition for certiorari
and/or prohibition with preliminary injunction before the Intermediate Appellate Court.

In the appellate court, the private respondents alleged, among others, the following:

xxx xxx xxx

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

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

xxx xxx xxx

20. Petitioners will refrain from discussing herein the merits of the shotgun
motion of Atty. Domingo L. Antigua as well as other incidents now pending in the
court below which smack of harassment against the herein petitioners. For,
regardless of the merits of said incidents, petitioners respectfully contend that it is
highly improper for respondent Hon. Francisco P. Burgos to continue to preside
over Sp. Proc. No. 916-R by reason of the following circumstances:

(a) He has shown undue interest in the sale of the properties as initiated
by Atty. Domingo L. Antigua whose sister is married to a brother of
respondent.

(b) The proposed sale cannot be legally done without the conformity of the
heirs-distributees, and petitioners have openly refused the sale, to the
great disappointment of respondent.

(c) The shot gun motion of Atty. Antigua and similar incidents are clearly
intended to harass and embarrass administrator Jose Cuenco Borromeo
in order to pressure him into acceding to the proposed sale.

(d) Respondent has shown bias and prejudice against petitioners by failing
to resolve the claim for attorney's fees filed by Jose Cuenco Borromeo and
the late Crispin Borromeo. Similar claims by the other lawyers were
resolved by respondent after petitioners refused the proposed sale. (pp.
41-43, Rollo)

On March 1, 1983, the appellate court rendered its decision granting the petition for
certiorari and/or prohibition and disqualifying Judge Francisco P. Burgos from taking
further cognizance of Special Proceedings No. 916-R. The court also ordered the
transmission of the records of the case to the Executive Judge of the Regional Trial
Court of Region VII for re-raffling.

A motion for reconsideration of the decision was denied by the appellate court on April
11, 1983. Hence, the present petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the case of Intestate Estate of Vito Borromeo and orders
the remand of the case to the Executive Judge of the Regional Trial Court of Cebu for
re-raffling.

The principal issue in this case has become moot and academic because Judge
Francisco P. Burgos decided to retire from the Regional Trial Court of Cebu sometime
before the latest reorganization of the judiciary. However, we decide the petition on its
merits for the guidance of the judge to whom this case will be reassigned and others
concerned.

The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They
contend that Judge Burgos has benn shown unusual interest in the proposed sale of the
entire estate for P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim that
this disinterest is shown by the judge's order of March 2, 1979 assessing the property of
the estate at P15,000,000.00. They add that he only ordered the administrator to sell so
much of the properties of the estate to pay the attorney's fees of the lawyers-claimants.
To them, the inhibition of Judge Burgos would have been unreasonable because his
orders against the failure of Jose Cuenco Borromeo, as administrator, to give an
accounting and inventory of the estate were all affirmed by the appellate court. They
claim that the respondent court, should also have taken judicial notice of the resolution
of this Court directing the said judge to "expedite the settlement and adjudication of the
case" in G.R. No. 54232. And finally, they state that the disqualification of judge Burgos
would delay further the closing of the administration proceeding as he is the only judge
who is conversant with the 47 volumes of the records of the case.

Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered
that Judge Burgos appointed Ricardo V. Reyes as co-administrator of the estate on
October 11, 1972, yet Borromeo was singled out to make an accounting of what t he
was supposed to have received as rentals for the land upon which the Juliana Trade
Center is erected, from January, 1977 to February 1982, inclusive, without mentioning
the withholding tax for the Bureau of Internal Revenue. In order to bolster the agitation
to sell as proposed by Domingo L. Antigua, Judge Burgos invited Antonio Barredo, Jr.,
to a series of conferences from February 26 to 28, 1979. During the conferences, Atty.
Antonio Barredo, Jr., offered to buy the shares of the heirs-distributees presumably to
cover up the projected sale initiated by Atty. Antigua.

On March 2, 1979, or two days after the conferences, a motion was filed by petitioner
Domingo L. Antigua praying that Jose Cuenco Borromeo be required to file an inventory
when he has already filed one to account for cash, a report on which the administrators
had already rendered: and to appear and be examined under oath in a proceeding
conducted by Judge Burgos lt was also prayed that subpoena duces tecum be issued
for the appearance of the Manager of the Consolidated Bank and Trust Co., bringing all
the bank records in the name of Jose Cuenco Borromeo jointly with his wife as well as
the appearance of heirs-distributees Amelinda Borromeo Talam and another heir
distributee Vitaliana Borromeo. Simultaneously with the filing of the motion of Domingo
Antigua, Atty. Raul H. Sesbreno filed a request for the issuance of subpoena duces
tecum to the Manager of Consolidated Bank and 'Trust Co., Inc.; Register of Deeds of
Cebu City; Register of Deeds for the Province of Cebu and another subpoena duces
tecum to Atty. Jose Cuenco Borromeo.

On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the
Managert of the bank, the Register of deeds for the City of Cebu, the Register of Deeds
for the Province, of Cebu. and to Jose Cuenco Borromeo.

On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the heirs
of Marcial Borromeo who had a common cause with Atty Barredo, Jr., joined petitioner
Domingo L. Antigua by filing a motion for relief of the administrator.

On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a

subpoena duces tecum to private respondent Jose Cuenco Borromeo to bring and
produce all the owners" copies of the titles in the court presided order by Judge Burgos.

Consequently. the Branch Clerk of Court issued a subpoena duces tecum commanding
Atty. Jose Cuenco Borromeo to bring and produce the titles in court.

All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979,
before the date of the hearing, Judge Burgos issued an order denying the private
respondents' motion for reconsideration and the motion to quash the
subpoena.1avvphi1

It was further argued by the private respondents that if ,judge Francisco P. Burgos is not
inhibited or disqualified from trying Sp. Proc. No. 916-R, there would be a miscarriage of
justice Because for the past twelve years, he had not done anything towards the closure
of the estate proceedings except to sell the properties of the heirs-distributees as
initiated by petitioner Domingo L. Antigua at 6.7 million pesos while the Intestate Court
had already evaluated it at 15 million pesos.

The allegations of the private respondents in their motion for inhibition, more
specifically, the insistence of the trial judge to sell the entire estate at P6,700,000.00,
where 4/9 group of heirs objected, cannot easily be ignored. Suspicion of partiality on
the part of a trial judge must be avoided at all costs. In the case of Bautista v.
Rebeuno (81 SCRA 535), this Court stated:

... The Judge must maintain and preserve the trust and faith of the parties
litigants. He must hold himself above reproach and suspicion. At the very first
 sign of lack of faith and trust to his actions, whether well grounded or not, the
Judge has no other alternative but inhibit himself from the case. A judge may not
be legally Prohibited from sitting in a litigation, but when circumstances appear
that will induce doubt to his honest actuations and probity in favor or of either
partly or incite such state of mind, he should conduct a careful self-examination.
He should exercise his discretion in a way that the people's faith in the Courts of
Justice is not impaired, "The better course for the Judge under such
circumstances is to disqualify himself "That way he avoids being misunderstood,
his reputation for probity and objectivity is preserve ed. what is more important,
the Ideal of impartial administration of justice is lived up to.

In this case, the fervent distrust of the private respondents is based on sound reasons.
As Earlier stated, however, the petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the Intestate Estate of Vito Borromeo case and ordering the
remand of the case to the Executive Judge of the Regional Trial Court for re-raffling
should be DENIED for the decision is not only valid but the issue itself has become
moot and academic.

G.R. No. 65995

The petitioners seek to restrain the respondents from further acting on any and all
incidents in Special Proceedings No. 916-R during the pendency of this petition and No.
63818. They also pray that all acts of the respondents related to the said special
proceedings after March 1, 1983 when the respondent Judge was disqualified by the
appellate court be declared null and void and without force and effect whatsoever.

The petitioners state that the respondent Judge has set for hearing all incidents in
Special Proceedings No. 916-R, including the reversion from the heirs-distributees to
the estate, of the distributed properties already titled in their names as early as 1970,
notwithstanding the pending inhibition case elevated before this Court which is docketed
as G.R. No. 63818.

The petitioners further argue that the present status of Special Proceeding No. 916-R
requires only the appraisal of the attorney's fees of the lawyers-claimants who were
individually hired by their respective heirs-clients, so their attorney's fees should be
legally charged against their respective clients and not against the estate.

On the other hand, the respondents maintain that the petition is a dilatory one and
barred by res judicata because this Court on July 8, 1981, in G.R. No. 54232 directed
the respondent Judge to expedite the settlement and liquidation of the decedent's
estate. They claim that this resolution, which was already final and executory, was in
effect reversed and nullified by the Intermediate Appellate Court in its case-AC G.R.-No.
SP - 11145 when it granted the petition for certiorari and or prohibition and
disqualified Judge Francisco P. Burgos from taking further cognizance of Special
Proceedings No. 916R as well as ordering the transmission of the records of the case to
the Executive Judge of the Regional Trial Court of Region VII for re-raffling on March 1,
1983, which was appealed to this Court by means of a Petition for Review (G.R. No.
63818).

We agree with the petitioners' contention that attorney's fees are not the obligation of
the estate but of the individual heirs who individually hired their respective lawyers. The
portion, therefore, of the Order of August 15, 1969, segregating the exhorbitantly
excessive amount of 40% of the market value of the estate from which attorney's fees
shall be taken and paid should be deleted.

Due to our affirmance of the decision of the Intermediate Appellate Court in G.R. No.
63818, we grant the petition.

WHEREFORE,

(1) In G.R. No. 41171, the order of the respondent judge dated December 24,
1974, declaring the respondent entitled to 5/9 of the estate of the late Vito
Borromeo and the order dated July 7, 1975, denying the petitioner's motion for
reconsideration of the aforementioned order are hereby SET ASIDE for being
NULL and VOID;

(2) In G.R. No. 55000, the order of the trial court declaring the waiver document
valid is hereby SET ASIDE;

(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision
of the Intermediate Appellate Court disqualifying and ordering the inhibition of
Judge Francisco P. Burgos from further hearing Special Proceedings No. 916-R
is declared moot and academic. The judge who has taken over the sala of retired
Judge Francisco P. Burgos shall immediately conduct hearings with a view to
terminating the proceedings. In the event that the successor-judge is likewise
disqualified, the order of the Intermediate Appellate Court directing the Executive
Judge of the Regional Trial Court of Cebu to re-raffle the case shall be
implemented:

(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking to
restrain Judge Francisco P. Burgos from further acting in G.R. No. 63818 is
MOOT and ACADEMIC:

(5) In G.R, No, 62895, the trial court is hereby ordered to speedily terminate the
close Special Proceedings No. 916-R, subject to the submission of an inventory
of the real properties of the estate and an accounting of the cash and bank
deposits by the petitioner-administrator of the estate as required by this Court in
its Resolution dated June 15, 1983; and

(6) The portion of the Order of August 15, 1969, segregating 40% of the market
value of the estate from which attorney's fees shall be taken and paid should be,
 as it is hereby DELETED. The lawyers should collect from the heirs-distributees
who individually hired them, attorney's fees according to the nature of the
services rendered but in amounts which should not exceed more than 20% of the
market value of the property the latter acquired from the estate as beneficiaries.

SO ORDERED.

Feliciano, Bidin and Cortes, JJ., concur.

Fernan (Chairman), took no part.
EODORA 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 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:

The above-quoted rules,[29] while permitting an executor or administrator to represent or

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

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.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.