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It may be true that the inventories relied upon by Defendants in their answer set up as special
defendant-appellant (Exhibits "2", "3", "4" and defense that on February 21, 1931, Maria Uson
"7") are not conclusive on the conjugal character and her husband, the late Faustino Nebreda,
of the property in question; but as already noted, executed a public document whereby they
they are clear admissions against the pecuniary agreed to separate as husband and wife and, in
interest of the declarants, Francisco de Borja and consideration of their separation, Maria Uson
his executor-widow, Tasiana Ongsingco, and as was given a parcel of land by way of alimony
such of much greater probative weight than the and in return she renounced her right to inherit
self-serving statement of Francisco (Exhibit any other property that may be left by her
"F"). Plainly, the legal presumption in favor of husband upon his death (Exhibit 1).
the conjugal character of the Hacienda de
Jalajala (Poblacion) now in dispute has not been After trial, at which both parties presented their
rebutted but actually confirmed by proof. Hence, respective evidence, the court rendered decision
the appealed order should be reversed and the ordering the defendants to restore to the plaintiff
Hacienda de Jalajala (Poblacion) declared the ownership and possession of the lands in
property of the conjugal partnership of Francisco dispute without special pronouncement as to
de Borja and Josefa Tangco. costs. Defendants interposed the present appeal.
No error having been assigned against the ruling There is no dispute that Maria Uson, plaintiff-
of the lower court that claims for damages appellee, is the lawful wife of Faustino Nebreda,
should be ventilated in the corresponding special former owner of the five parcels of lands
proceedings for the settlement of the estates of litigated in the present case. There is likewise no
the deceased, the same requires no pro dispute that Maria del Rosario, one of the
announcement from this Court. defendants-appellants, was merely a common-
law wife of the late Faustino Nebreda with
IN VIEW OF THE FOREGOING, the appealed whom she had four illegitimate children, her
order of the Court of First Instance of Rizal in now co-defendants. It likewise appears that
Case No. L-28040 is hereby affirmed; while Faustino Nebreda died in 1945 much prior to the
those involved in Cases Nos. L-28568 and L- effectivity of the new Civil Code. With this
28611 are reversed and set aside. Costs against background, it is evident that when Faustino
the appellant Tasiana Ongsingco Vda. de Borja Nebreda died in 1945 the five parcels of land he
in all three (3) cases. was seized of at the time passed from the
moment of his death to his only heir, his widow
6. MARIA USON, plaintiff-appellee, Maria Uson (Article 657, old Civil Code).As this
vs. Court aptly said, "The property belongs to the
MARIA DEL ROSARIO, CONCEPCION heirs at the moment of the death of the ancestor
NEBREDA, CONRADO NEBREDA, as completely as if the ancestor had executed
DOMINADOR NEBREDA, AND and delivered to them a deed for the same before
FAUSTINO NEBREDA, Jr., defendants- his death" (Ilustre vs. Alaras Frondosa, 17 Phil.,
appellants. 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 that this claim is disputed, we are of the opinion
relinquished her right over the lands in question that said assignment, if any, partakes of the
because she expressly renounced to inherit any nature of a donation of real property, inasmuch
future property that her husband may acquire as it involves no material consideration, and in
and leave upon his death in the deed of order that it may be valid it shall be made in a
separation they had entered into on February 21, public document and must be accepted either in
1931, cannot be entertained for the simple the same document or in a separate one (Article
reason that future inheritance cannot be the 633, old Civil Code). Inasmuch as this essential
subject of a contract nor can it be renounced (1 formality has not been followed, it results that
Manresa, 123, sixth edition; Tolentino on Civil the alleged assignment or donation has no valid
Code, p. 12; Osorio vs. Osorio and Ynchausti effect.
Steamship Co., 41 Phil., 531).
WHEREFORE, the decision appealed from is
But defendants contend that, while it is true that affirmed, without costs.
the four minor defendants are illegitimate
children of the late Faustino Nebreda and under 7. ROSALIO BONILLA (a minor)
the old Civil Code are not entitled to any SALVACION BONILLA (a minor) and
successional rights, however, under the new PONCIANO BONILLA (their father) who
Civil Code which became in force in June, 1950, represents the minors, petitioners,
they are given the status and rights of natural vs.
children and are entitled to the successional LEON BARCENA, MAXIMA ARIAS
rights which the law accords to the latter (article BALLENA, ESPERANZA BARCENA,
2264 and article 287, new Civil Code), and MANUEL BARCENA, AGUSTINA NERI,
because these successional rights were declared widow of JULIAN TAMAYO and HON.
for the first time in the new code, they shall be LEOPOLDO GIRONELLA of the Court of
given retroactive effect even though the event First Instance of Abra, respondents.
which gave rise to them may have occurred
under the prior legislation (Article 2253, new MARTIN, J:
Civil Code).
This is a petition for review 1 of the Order of the
There is no merit in this claim. Article 2253 Court of First Instance of Abra in Civil Case No.
above referred to provides indeed that rights 856, entitled Fortunata Barcena vs. Leon
which are declared for the first time shall have Barcena, et al., denying the motions for
retroactive effect even though the event which reconsideration of its order dismissing the
gave rise to them may have occurred under the complaint in the aforementioned case.
former legislation, but this is so only when the
new rights do not prejudice any vested or On March 31, 1975 Fortunata Barcena, mother
acquired right of the same origin. Thus, said of minors Rosalio Bonilla and Salvacion Bonilla
article provides that "if a right should be and wife of Ponciano Bonilla, instituted a civil
declared for the first time in this Code, it shall be action in the Court of First Instance of Abra, to
effective at once, even though the act or event quiet title over certain parcels of land located in
which gives rise thereto may have been done or Abra.
may have occurred under the prior legislation,
provided said new right does not prejudice or On May 9, 1975, defendants filed a written
impair any vested or acquired right, of the same motion to dismiss the complaint, but before the
origin." As already stated in the early part of this hearing of the motion to dismiss, the counsel for
decision, the right of ownership of Maria Uson the plaintiff moved to amend the complaint in
over the lands in question became vested in 1945 order to include certain allegations therein. The
upon the death of her late husband and this is so motion to amend the complaint was granted and
because of the imperative provision of the law on July 17, 1975, plaintiffs filed their amended
which commands that the rights to succession complaint.
are transmitted from the moment of death
(Article 657, old Civil Code). The new right
On August 4, 1975, the defendants filed another
recognized by the new Civil Code in favor of the
motion to dismiss the complaint on the ground
illegitimate children of the deceased cannot,
that Fortunata Barcena is dead and, therefore,
therefore, be asserted to the impairment of the
has no legal capacity to sue. Said motion to
vested right of Maria Uson over the lands in
dismiss was heard on August 14, 1975. In said
dispute.
hearing, counsel for the plaintiff confirmed the
death of Fortunata Barcena, and asked for
As regards the claim that Maria Uson, while her substitution by her minor children and her
deceased husband was lying in state, in a gesture husband, the petitioners herein; but the court
of pity or compassion, agreed to assign the lands after the hearing immediately dismissed the case
in question to the minor children for the reason on the ground that a dead person cannot be a real
that they were acquired while the deceased was party in interest and has no legal personality to
living with their mother and Maria Uson wanted sue.
to assuage somewhat the wrong she has done to
them, this much can be said; apart from the fact
On August 19, 1975, counsel for the plaintiff right be pure or contingent. 4 The right of the
received a copy of the order dismissing the heirs to the property of the deceased vests in
complaint and on August 23, 1975, he moved to them even before judicial declaration of their
set aside the order of the dismissal pursuant to being heirs in the testate or intestate
Sections 16 and 17 of Rule 3 of the Rules of proceedings. 5 When Fortunata Barcena,
Court. 2 therefore, died her claim or right to the parcels
of land in litigation in Civil Case No. 856, was
On August 28, 1975, the court denied the motion not extinguished by her death but was
for reconsideration filed by counsel for the transmitted to her heirs upon her death. Her heirs
plaintiff for lack of merit. On September 1, have thus acquired interest in the properties in
1975, counsel for deceased plaintiff filed a litigation and became parties in interest in the
written manifestation praying that the minors case. There is, therefore, no reason for the
Rosalio Bonilla and Salvacion Bonilla be respondent Court not to allow their substitution
allowed to substitute their deceased mother, but as parties in interest for the deceased plaintiff.
the court denied the counsel's prayer for lack of
merit. From the order, counsel for the deceased Under Section 17, Rule 3 of the Rules of Court
plaintiff filed a second motion for "after a party dies and the claim is not thereby
reconsideration of the order dismissing the extinguished, the court shall order, upon proper
complaint claiming that the same is in violation notice, the legal representative of the deceased to
of Sections 16 and 17 of Rule 3 of the Rules of appear and be substituted for the deceased,
Court but the same was denied. within such time as may be granted ... ." The
question as to whether an action survives or not
Hence, this petition for review. depends on the nature of the action and the
damage sued for. 6 In the causes of action which
The Court reverses the respondent Court and survive the wrong complained affects primarily
sets aside its order dismissing the complaint in and principally property and property rights, the
Civil Case No. 856 and its orders denying the injuries to the person being merely incidental,
motion for reconsideration of said order of while in the causes of action which do not
dismissal. While it is true that a person who is survive the injury complained of is to the person,
dead cannot sue in court, yet he can be the property and rights of property affected
substituted by his heirs in pursuing the case up being incidental. 7 Following the foregoing
to its completion. The records of this case show criterion the claim of the deceased plaintiff
that the death of Fortunata Barcena took place which is an action to quiet title over the parcels
on July 9, 1975 while the complaint was filed on of land in litigation affects primarily and
March 31, 1975. This means that when the principally property and property rights and
complaint was filed on March 31, 1975, therefore is one that survives even after her
Fortunata Barcena was still alive, and therefore, death. It is, therefore, the duty of the respondent
the court had acquired jurisdiction over her Court to order the legal representative of the
person. If thereafter she died, the Rules of Court deceased plaintiff to appear and to be substituted
prescribes the procedure whereby a party who for her. But what the respondent Court did, upon
died during the pendency of the proceeding can being informed by the counsel for the deceased
be substituted. Under Section 16, Rule 3 of the plaintiff that the latter was dead, was to dismiss
Rules of Court "whenever a party to a pending the complaint. This should not have been done
case dies ... it shall be the duty of his attorney to for under the same Section 17, Rule 3 of the
inform the court promptly of such death ... and Rules of Court, it is even the duty of the court, if
to give the name and residence of his executor, the legal representative fails to appear, to order
administrator, guardian or other legal the opposing party to procure the appointment of
representatives." This duty was complied with a legal representative of the deceased. In the
by the counsel for the deceased plaintiff when he instant case the respondent Court did not have to
manifested before the respondent Court that bother ordering the opposing party to procure
Fortunata Barcena died on July 9, 1975 and the appointment of a legal representative of the
asked for the proper substitution of parties in the deceased because her counsel has not only asked
case. The respondent Court, however, instead of that the minor children be substituted for her but
allowing the substitution, dismissed the also suggested that their uncle be appointed as
complaint on the ground that a dead person has guardian ad litem for them because their father is
no legal personality to sue. This is a grave error. busy in Manila earning a living for the family.
Article 777 of the Civil Code provides "that the But the respondent Court refused the request for
rights to the succession are transmitted from the substitution on the ground that the children were
moment of the death of the decedent." From the still minors and cannot sue in court. This is
moment of the death of the decedent, the heirs another grave error because the respondent
become the absolute owners of his property, Court ought to have known that under the same
subject to the rights and obligations of the Section 17, Rule 3 of the Rules of Court, the
decedent, and they cannot be deprived of their court is directed to appoint a guardian ad
rights thereto except by the methods provided litem for the minor heirs. Precisely in the instant
for by law. 3 The moment of death is the case, the counsel for the deceased plaintiff has
determining factor when the heirs acquire a suggested to the respondent Court that the uncle
definite right to the inheritance whether such 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.
SO ORDERED.
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