INHERITANCE On 25 February 1941, by virtue of the writ of execution

above mentioned, the provincial sheriff of Nueva Ecija

1. ) G.R. No. L-14127 August 21, 1962 sold at public auction one-half (½) of the following
property:
ISIDORO M. MERCADO, plaintiff-appellee,
vs. TAX DECLARATION NO. 11313 OF THE
LEON C. VIARDO and PROVINCIAL SHERIFF OF MUNICIPALITY OF ZARAGOZA, PROVINCE OF
NUEVA ECIJA, defendants-appellants. NUEVA ECIJA AND COVERED BY ORIGINAL
CERTIFICATE OF TITLE NO. 3484 OF THE LAND
RECORDS OF NUEVA ECIJA.
-----------------------------

A parcel of land, situated in the sitio of Valdez,

G.R. No. L-14128 August 21, 1962
barrio Sto. Rosario, municipality of Zaragoza,
Province of Nueva Ecija. Bounded on the North
LEON C. VIARDO, plaintiff-appellant, by property of Felisa Belmonte; on the East by
vs. Sapang Dalagot; on the Southeast by Ines de
PILAR BELMONTE, PATRICIA DRIZ, JOAQUINA Guzman; on the South by the property of Felisa
DRIZ, ISIDORO MERCADO, Belmonte; and on then West by the property of
TRINIDAD ISIDRO, ZACARIAS BELMONTE, Cirilo Acosta; containing an area of THIRTY (30)
TERESITA FLORES, HECTARES, more or less. Declared under tax
PHILIPPINE AMERICAN GENERAL INSURANCE No. 11313 in the name of Pilar Belmonte with an
COMPANY, INC. and PHILIPPINE NATIONAL assessed value of P8,400.00.
BANK,defendants-appellees.
The highest bidder at the auction sale was the judgment
No. L-14127: creditor, Leon C. Viardo, who paid P2,125.64 for the
Agustin C. Bagasao for plaintiff-appellee. interest sold and P83.15 for the land tax corresponding
Manuel A. Concordia for defendants-appellants. to such interest (Exhibit B). When the judgment debtors
failed to redeem the property within the statutory period
No. L-14128: of one year from the date of sale (21 February 1941), the
Manuel A. Concordia for plaintiff-appellant. provincial sheriff of Nueva Ecija executed on 12 May
E. A. Bello, M. Y. Macias and A. A. Reyes for defendant- 1943 a Final Bill of Sale of the property described in
appellee Philippine American General Insurance Exhibit B in favor of Leon C. Viardo (Exhibit C). On 3
Company, Inc. May 1943 a co-owner's copy of the certificate of title was
Cecilio F. Wycoco for defendants-appellees Pilar issued to Leon C. Viardo (Exhibit A, p. 3).
Belmonte and Teresita Flores.
Carlos M. Ferrer for defendants-appellees Patricia Driz, On 28 December 1945 the Court of First Instance of
et al. Nueva Ecija, in Land Registration Case No. 918,
G.L.R.O. Record No. 17910, acting upon a verified
PADILLA, J.: petition of Leon C. Viardo, ordered the Registrar of
Deeds in and for Nueva Ecija —
In civil case No. 7611 of the Court of First Instance of
Nueva Ecija, entitled Leon C. Viardo vs. Bartolome Driz to cancel Original Certificate of Title No. 3484
and Pilar Belmonte, a writ of execution was issued and and to issue another in lieu thereof in the name
levy was made "upon all the rights, interest and of and in the proportion as follows: LEONOR
participation which the spouses Bartolome Driz and Pilar BELMONTE ¼ share; FELISA BELMONTE, ¼
Belmonte have or might have" in a parcel of land share; PILAR BELMONTE, ¹/8 share; LEON C.
covered by original certificate of title No. 3484 of the VIARDO, ¹/8 share; and INES DE GUZMAN, ¼
Registrar of Deeds in and for the province of Nueva share, upon the payment of the corresponding
Ecija (Exhibit A, p.3). This certificate of title covers a fees (Exhibit D).
parcel of land (Lot No. 1, Psu-14371) in the barrios of
Nieves and Santo Rosario, municipality of Zaragoza, However, it appears from Original Certificate of Title No.
province of Nueva Ecija, containing an area of 1,192,775 3484 (Exhibit A) that the above-mentioned order was not
square meters, more or less. The land is registered in carried out and that said original certificate of title was
the names of "Leonor Belmonte, Felisa Belmonte, Pilar not cancelled.
Belmonte and Ines de Guzman, subject . . . to the
condition that ¼ share [that] belongs to Ines de Guzman
On 27 May 1946 Bartolome Driz and Pilar Belmonte filed
is usufructuary "correspondiendo la nuda propiedad a
in the Court of First Instance of Nueva Ecija a complaint
sus tres hijas arriba citadas en participaciones iguales
against Leon C. Viardo (civil case No. 161) praying that
quienes se consolidara el dominio despues del
judgment be rendered against the defendant:
fallecimiento de su madre' " (Exhibit A, p. 2).
 (a) Ordering the defendant to reconvey the
property in question in favor of plaintiffs herein
upon payment by the latter of the lawful
redemption price in accordance with law, or the
sum of P2,125.64 with interest at the rate of one
per centum (1%) per month for twelve (12)
months from February 27, 1941 to February 27,
1942. (Exhibit E.)
On 4 June 1946 Patricia Blando, attorney for the
plaintiffs Bartolome Driz and Pilar Belmonte, requested
the Registrar of Deeds in and for Nueva Ecija for —
the annotation of a Notice of LIS PENDENS on
the back of ORIGINAL CERTIFICATE OF TITLE
NO. 3484 of the Office of the Register of Deeds
for the Province of Nueva Ecija, affecting the
undivided one-half (½) portion of the property of
the plaintiffs in the above-entitled cause, situated
in the Sitio of Valdez, Barrio of Sto. Rosario,
Municipality of Zaragoza, which is involved in
the said controversy against the defendant
LEON C. VIARDO, and which is more
particularly described under paragraph (4) of the
plaintiffs' complaint a copy of which is hereby
presented, hereunto attached. (Exhibit F.)
On 6 June 1946 the Registrar of Deeds made the
following annotation on the back of original certificate of
title No. 3484:
Entry No. 3347/0-3484: Kind — Lis Pendens —
Executed in favor of Bartolome Driz and Pilar
Belmonte; Conditions — Al the rights, interests,
and participation of Leon C. Viardo in this title is
the subject of a complaint filed in Civil Case No.
16 of the C.F.I. of N.E. now pending for action.
Date of the instrument — June 4, 1946; Date of
the inscription — June 6, 1946 at 3:18 (?) p.m.
(Sgd.) F.C. Cuizon, Acting Register of Deeds.
(Exhibit A, p. 3.)
While the above-mentioned case was pending in the
Court of First Instance of Nueva Ecija, Pilar Belmonte,
one of the plaintiffs, entered into the following contracts
involving her interest or rights over the parcel of land
covered by original certificate of title No. 3484:
(1) Entry No. 10984: Kind — Sale; Executed in
favor of — Isidro M. Mercado & Trinidad Isidro;
Conditions--Pilar Belmonte sold a portion of
Seven and One-Half (7-½) hectares of the
property described in this title for the sum of
P5,500.00 (D-126: P-90: B-11: S-1948, Herminio
E. Algas, N. E.) Date of the Inst. — June 28,
1948 at 1:30 p.m. (Sgd.) F.C. CUIZON, Register
of Deeds.
(2) Entry No. 10985/0-3484: Kind — Sale with
right of repurchase: Executed in favor of —
Federico Aquino; Conditions — Pilar Belmonte
sold with a right of repurchase seven and one-
half (7-½) hectares of her share, interest and
participation in this title for the sum of P3,600.00
(D-127: P-90: B-11: S-48. H. Algas, N. E.) Date
of the Inst. — June 28, 1948; Date of the
Inscription — June 28, 1948 at 1:30 p.m. (Sgd.)
F. C. CUIZON, Register of Deeds.
(3) Entry No. 15110/0-3484: Kind — Resale:
Executed in favor of — Pilar Belmonte;
Conditions — Federico Aquino resold his share
in this title consisting of 7-½ Has. for the sum of
P3,600.00 (D-63: P-15: B-6: S-1949, Jose E.
Castañeda, Manila) Date of the Inst. — March 8,
1958: Date of the Inscription — April 8, 1949 at
11:30 a.m. (Sgd.) F.C. CUIZON, Register of
Deeds.
(4) Entry No. 15111/0-3484: Kind — Sale;
Executed in favor of — Dominador Asuncion and
Tomasita Dansil: Pilar Belmonte sold a portion of
seven (7) Has. of her share and participation in
this title for the sum of P7,000.00. (D-64: P-15:
B-6: S-1949, J. E. Castañeda, Manila) Date of
the Inst. — March 9, 1949; Date of the
Inscription — April 8, 1949 at 11:30 a.m. (Sgd.)
F.C. CUIZON, Register of Deeds. (Exhibit A, p.
4)
On 11 April 1950 the Court of First Instance of Nueva
Ecija rendered judgment in civil case No. 161, as
follows:
IN VIEW OF THE FOREGOING, the Court absolves the
defendant from the complaint of the plaintiffs, in the
same manner that plaintiffs are absolved from the
counter complaint of the defendant. Defendant is the
legal owner of the land in question and the right of
redemption of the plaintiff of said land had already
elapsed. With costs to the plaintiff. (Exhibit G.)
Not satisfied with the judgment dismissing his counter-
claim, the defendant Leon C. Viardo appealed to the
Court of Appeals. While the appeal was pending, the
following transactions involving the interest or rights of
Pilar Belmonte over the parcel of land covered by
original certificate of title No. 3484 took place:
(1) Entry No. 7967/NT-15162: Kind — Partition:
Executed in favor of — Felisa Belmonte, et al.;
Conditions — By virtue of a deed of partition, the
share of the deceased Ines de Guzman and
Isidro Belmonte has been adjudicated in favor of
the heirs of said deceased. (D-891: P-77: B-V:
S-1948, Manuel E. Castañeda, Manila) Date of
the Inst. — March 31, 1948: Date of the
Inscription — Feb. 18, 1954 at 10:18 a.m. (Sgd.)
F.C. CUIZON, Register of Deeds.
(2) Entry No. 7968/NT-15162: Kind —
Agreement: Executed in favor of — Felisa
Belmonte, et al; Conditions — By virtue of an
agreement of the parties concerned in the
partition, Lots Nos. 1-D and 1-J, with an area of
300,000 sq. m. and 80,000 sq.m., more or less,
respectively in the subdivision plan Psd-36340,
a portion of lot 1 described on plan Psu-14371,
of this title, have been adjudicated in favor of
Felisa Belmonte and Lot 1-G with an area of
75,000 sq.m., more or less, of the same
subdivision, has been adjudicated in favor of
Isidoro Mercado, See TCT No. 15162 and
15163, Vol. No. 76. (D-211: P-44: B-IV: S-1952,
P. Bautista, Cab. City) Date of the Inst. — Jan.
22, 1952: Date of the Inscription — Feb. 18,
1954 at 10:18 a.m.(Sgd.) F.C. CUIZON, Register
of Deeds.
(3) Entry No. 9715/NT-15746: Kind — Sale;
Executed in favor of — Sp. Zacarias Belmonte
and Teresita Flores; Conditions — Dominador
Asuncion and Tomasita Dansil sold all their
rights and interest in this title consisting of seven
hectares for the sum of P6,000.00. (D-177: P-
37: B-IV: S-1952; R. S. Pengson, N.E.) Date of
the Inst. — Feb. 4, 1952; Date of Inscription —
May 13, 1954 at 10:08 a.m. (Sgd.) F.C.
CUIZON, Register of Deeds.
(4) Entry No. 12168/NT-15162: Kind — Project
of Partition — Executed in favor of Pilar
Belmonte; Conditions — By virtue of a project of
partition re-estate of the late Ines de Guzman, a
portion of 13.2775 hectares of the land
described in this title has been adjudicated in
favor of Pilar Belmonte. (D-891: P-77: B-V: S-
1948, Manuel E. Castañeda, Manila) Date of the
Inst. — March 31, 1948: Date of the Inscription
— Aug. 23, 1954 at 2:00 p.m. (Sgd.) F.C.
CUIZON, Register of Deeds.1äwphï1.ñët
(5) Entry No. 12169/NT-16440: Kind — Sale;
Executed in favor of — Joaquin Driz: Conditions
— Pilar Belmonte sold Lot 1-B of the subdivision
plan of this title Psd-36340 a portion taken from
her undivided 13.2775 hectares with an area of
52,775 sq.m., more or less, for the sum of
P800.00. See TCT NT-16440, Vol. No. 83. (D-
160: P-33: B-I: S-1954, Adolfo San Juan, Cab.
City) Date of the Inst. — Aug. 23, 1954; Date of
the Inscription — Aug. 23, 1954 at 2:00 p.m.
(Sgd.) F.C. CUIZON, Register of Deeds.
(6) Entry No. 12370/NT-16488: Kind — Sale;
Executed in favor of — Patricia Driz: Conditions
— Pilar Belmonte sold Lot 1-A of the subdivision
plan Psd-36340 being a portion of Lot 1
described in plan Psu-14371, G.L.R.O. Cad.
Record No. 17910, of this title for the sum of
P1,000.00 with an area of 80,000 sq.m., with
respect to her share of 13.2775 hectares. See
TCT No. NT-16488, Vol. 83. (D-440: P-90: B-V:
S-1954, H. V. Garcia, Cab. City) Date of the Inst.
— Aug. 31, 1954: Date of the Inscription —
Sept. 2, 1954 at 8:00 p.m. (Sgd.) F.C. CUIZON,
Register of Deeds.
(7) Entry No. 12512/NT-16546: Kind — Sale;
Executed in favor of — Patricia Driz: Conditions
— Pilar Belmonte sold Lots Nos. 1-H and 1-I of
the subdivision plan Psd-30340 of the property
described in this title for the sum of P850.00.
See TCT No. NT-16524, Vol. 83. (D-167: P-35:
B-I: S-1954, Adolfo San Juan, Cab. City) Date of
the Inst. — Sept. 9, 1954; Date of the Inscription
— Sept. 9, 1954 at 11:50 a.m. (Sgd.) F. C.
CUIZON, Register of Deeds.
(8) Entry No. 12569/NT-16546: Kind — Sale;
Executed favor of — Patricia Driz; Conditions —
Pilar Belmonte sold Lot I-E of the subdivision
plan Psd-30340 of the property described in this
title, with an area of 79,848 sq.m., more or less
the subdivision plan of this title, was sold for the
sum of P2,000.00. See TCT No. NT-16546, Vol.
83. (D-172: P-36: BS-1954, Adolfo San Juan,
Cab. City) Date of the Inst. — Sept. 11, 1954;
Date of the Inscription — Sept. 13, 1954 at 8:20
am. (Sgd.) F.C. CUIZON, Register of Deeds.
(Exhibit A, pp. 4-5.)
On 22 September 1954, a few days after the last
transactions mentioned above, the Court of Appeals
passed a resolution granting the prayer of
defendant-appellant Leon C. Viardo that the children
and only heirs, namely, Artemio, Patricia, Mario,
Domingo, Joaquina and Catalina, surnamed Driz,
who were all of age, be substituted for the deceased
appellee Bartolome Driz (the husband of Pilar
Belmonte). (Exhibit H-1).
On 25 September 1954 the Court of Appeals rendered
judgment awarding damages prayed for in the
counterclaim of Leon V. Viardo. The judgment made the
following findings and conclusions:
. . . The area of the contested property is 15
hectares. By computation, this is capable of
producing 750 cavans of palay a year. On the
basis of 70-30, defendant is entitled to 225
cavans of palay a year. Therefore, plaintiffs are
under obligation to deliver to defendant this
quantity of palay every agricultural year from the
filing of defendant's answer on August 5, 1946,
up to the time he vacates said land, or pay the
equivalent value thereof at P12.00 a cavan.
Having been declared owner of the land in
dispute, defendant is entitled to its possession.
Inasmuch as the court below did not order
plaintiffs to restore the possession of the land in
question, we hereby order them to vacate the
 same and restore possession thereof to
defendant. (Exhibit H.)
This judgment of the Court of Appeals became final and
executory and the records were remanded to the lower
court. On 16 December 1954 the Court of First Instance
of Nueva Ecija issued a writ of execution (Exhibit W).
The return made by Chief of Police of the Municipality of
Zaragoza on 14 February 1955 states that Leon C.
Viardo had been placed in possession of the parcel of
land referred to in the writ and that levy was made on a
total of 86 cavans and 74 kilos of palay, and that the
same were deposited in a warehouse (Exhibit X).
On or about 4 January 1955 Isidoro M. Mercado filed a
third party claim with the Provincial Sheriff of Nueva
Ecija (Exhibit Y). The affidavit attached to the claim
states that Isidoro M. Mercado and his wife purchased
from Pilar Belmonte on 28 June 1948 seven and one-
half hectares of her undivided share in the land
described in original certificate of title No. 3484, that on
the same day the deed of sale was registered, that a
transfer certificate of title was issued in their names, and
that since 1948 up to the time of the levy on execution
he had been in actual possession of the parcel of land,
paying the corresponding taxes thereon and had
exclusively benefited from the harvests therein, (Exhibit
Y-1). The sheriff was requested not to continue with the
levy on the harvest in the parcel of land they were
claiming.
On 2 February 1955 Isidoro M. Mercado filed in the
Court of First Instance of Nueva Ecija a complaint
docketed as civil case No. 1718, against Leon C. Viardo
and the Provincial Sheriff. The complaint alleged that
improper levy had been made on the harvest in plaintiff's
parcel of land and prayed that judgment be rendered
ordering the defendants to return the palay levied upon,
together with damages.
On 26 February 1955 the defendants answered that
plaintiffs' purchase of the parcel of land in question from
Pilar Belmonte was subject to whatever judgment the
courts might render in civil case No. 161 between Pilar
Belmonte and Leon C. Viardo. On 17 October 1955 the
Court of First Instance of Nueva Ecija entered an order
suspending the trial of the case, in view of the
information by counsel for the defendant that his client
Leon C. Viardo would file a complaint against all persons
claiming ownership of or interest in the parcel of land
covered by original certificate of title No. 3484 (Record
on Appeal, pp. 2-11).
On 5 December 1955 civil case No. 2004 was filed by
Leon V. Viardo against Pilar Belmonte, Patricia Driz,
Joaquina Driz, Isidoro Mercado, Trinidad Isidro, Zacarias
Belmonte, Teresita Flores, Philippine American General
Insurance Co., Inc. and the Philippine National Bank, as
parties claiming some right, participation, share or
interest in the parcel of land covered by original
certificate of title No. 3484 or by trader certificates of title
derived therefrom. The defendants filed their answers.
After trial,1 on 24 August 1956 the trial court rendered
judgment in civil cases Nos. 1718 and 2004, the
dispositive part of which reads as follows:
IN VIEW OF THE FOREGOING
CONSIDERATIONS, in Civil Case 2004, Leon C.
Viardo, Isidoro M. Mercado, Zacarias Belmonte
and Patricia Driz are hereby declared CO-
OWNERS PRO-INDIVISO of lots 1-A PSD-
16864, which is the ¼ share of Pilar Belmonte in
Lot 1, PSU 14371, OCT No. 3484 in the
following proportions: ONE-HALF for LEON C.
VIARDO; 7½ hectares for Isidoro M. Mercado; 7
hectares for Zacarias Belmonte, and the
remainder for Patricia Driz, it being understood
that whatever is adjudicated to Patricia Driz in
the partition shall be subject to the mortgage in
favor of the Philippine National Bank; the deeds
of sale executed by Pilar Belmonte in favor of
Patricia Driz, Exhibits R and S are declared
NULL AND VOID; the deeds of partition Exhibits
L and N, are set aside, and the certificates of
title issued in favor of Zacarias Belmonte, Isidoro
M. Mercado and Patricia Driz, Exhibits P, Q, R-1
and S-1 are ordered cancelled. And in civil case
1718 Isidoro M. Mercado is hereby declared to
be entitled to the products which had been
levied upon by the Provincial Sheriff. No
damages are awarded. The parties in civil case
2004 shall come to an amicable settlement with
respect to the partition. Upon their failure to
arrive at an amicable settlement, commissioner
shall be appointed by this Court in accordance
with a law to make the partition.
With costs against the defendants in both cases.
Only Leon C. Viardo, plaintiff in civil case No. 2004 and
defendant in civil case No. 1718, appealed to the Court
of Appeals. On 21 May 1958 the latter certified and
forwarded the appeals to this Court because the facts
are not in dispute and "the questions raised by appellant
in his brief are purely legal in nature."
In his first assignment of error the appellant contends
that the trial court "erred in not annulling the sale
executed by Pilar Belmonte to Isidoro M. Mercado,
marked as Exhibit I, and to Dominador Asuncion and
Teresita Bansil (Exhibit J) and the sale by Dominador
Asuncion to Zacarias Belmonte and Teresita Flores in a
Deed of Sale marked Exhibit M." In support thereof he
argues that the three sales took place and were
registered after he had become the absolute owner of an
undivided one-half interest in the parcel of land owned
by Pilar Belmonte and after notice of lis pendens had
been recorded on the title of Pilar Belmonte.
The argument is without merit. It is true that the
appellant became the absolute owner of an undivided
one-half interest in the undivided one-fourth interest
owned by Pilar Belmonte in the parcel of land described
in original certificate of title No. 3484; that before Pilar
Belmonte sold parts of her undivided share in the parcel
of land to Isidoro M. Mercado and Dominador Asuncion
and the last in turn sold his part to Zacarias Belmonte,
there was notice of lis pendens recorded on the
certificate of title; and that this notice is binding upon all
who should acquire an interest in the property
subsequent to the record of the lis pendens. The notice
of lis pendens (Exhibit A), however, was limited to one-
half interest acquired by Leon C. Viardo from Pilar
Belmonte. The other one-half undivided interest of the
latter was not in litigation and therefore the trial court
correctly held that Pilar Belmonte, as the owner of this
undivided one-half interest, had a right to sell it and
could convey absolute title thereto or to parts thereof. Of
course, the deeds of sale executed by Pilar Belmonte
appears to convey definite or segregated parts of her
remaining interest in the parcel of land described in
original certificate of title No. 3484, which she could not
do, because this one-fourth in interest had not yet been
subdivided to show the interest acquired by Leon C.
Viardo, amounting to one-half of the said one-fourth
interest. This defect, however, does not result in the
nullity of the deeds of sale she had executed relating to
her remaining interest of one-eighth. The sales were
valid, subject only to the condition that the interests
acquired by the vendees were limited to the parts which
might be assigned to them in the division upon the
termination of the co-ownership (Article 493, Civil Code).
In the second assignment of error the appellant
contends that the trial court "erred in not annulling the
sales executed by Pilar Belmonte in favor of her
daughters Joaquina and Patricia Driz of lots 1-B and 1-
A, Exhibits U and V of Plan PSD 36340."
Lots 1-B and 1-A of Plan PSD-36340 are taken, not from
the original one-fourth interest of Pilar Belmonte in the
parcel of land covered by original certificate of title No.
3484, which interest was levied upon and thereafter
acquired by Leon C. Viardo to the extent of one-half, but
from another one-fourth interest in the same parcel of
land, which belonged originally to Ines de Guzman, the
mother of Pilar Belmonte. This one-fourth interest
subsequently devolved upon Pilar Belmonte and her two
sisters. The three sisters partitioned this one-fourth
interest among themselves and lots 1-A and 1-B were
assigned to Pilar Belmonte who, in turn, sold them to her
daughters. These sales, the appellant contends, are
fictitious and in fraud of his rights as creditor.
The only evidence adduced by the appellant in support
of this contention is that the sales were made by the
mother to her daughters. This is not enough evidence to
hold the sale fictitious and fraudulent. There is no
evidence whatsoever that Pilar Belmonte, at the time
she sold the lots, had outstanding debts or was in an
otherwise embarrasing financial position. Even the credit
of Leon C. Viardo, the appellant, was established only
after the sales were executed, when the Court of
Appeals modified the judgment of the trial court in civil
case No. 161 by awarding damages to him. There is no
merit, therefore, in the second assignment of error.
In the third assignment of error the appellant contends
that the trial court "erred in declaring that the "product
raised in the portion under the occupancy of Isidoro
Mercado, therefore, pertains to him and was not subject
to the levy or execution in favor of Leon C. Viardo in Civil
Case No. 161." In support of this assignment the
appellant again harps on the fact that the time Isidoro
Mercado acquired an interest in the property, there was
notice of lis pendens, and therefore Isidoro Mercado "is
not a purchaser in good faith."
This contention has been overruled in the first
assignment of error when the notice of lis
pendens (Exhibits A and F) was held to refer not to the
remaining one-eighth interest of Pilar Belmonte in the
parcel of land described in original certificate of title No.
3484, but to the one-eighth interest which Leon C.
Viardo had acquired from Pilar Belmonte, and which the
latter was trying to recover from him in civil case No.
161. It was Pilar Belmonte who caused the notice of lis
pendens to be recorded to subject "all the rights,
interests and participation of Leon C. Viardo in this Title"
to the result of the litigation in the aforesaid civil case
No. 161. Pilar Belmonte did not thereby subject her
remaining one-eighth interest to the result of civil case
No. 161 which she had filed against Leon C. Viardo. If
the latter wanted to subject the remaining one-eighth
interest of Pilar Belmonte to the outcome of his
counterclaim in civil case No. 161, he should have asked
for it.
The view held by this Court in passing upon the third
assignment of error renders it unnecessary for the Court
to discuss the respective rights and liabilities of co-
owners when one co-owner, without the knowledge
and/or consent of the other co-owners, plants or builds
on the property owned in common.
The appellant further contends that the trial court erred
"in concluding that the heirs of Bartolome Driz could not
be held personally liable for the judgment rendered
against the plaintiffs in Civil Case No. 161 and therefore
Lots 1-A and 1-B cannot be subject to the payment of
the judgment in favor of Leon C. Viardo."
The only ground of appellant for this contention is that
the present owners of these lots are the children of the
spouses Pilar Belmonte and Bartolome Driz, the
plaintiffs in civil case No. 161, and that, upon the death
of Bartolome Driz during the pendency of the appeal in
civil case No. 161, these children were substituted as
parties. This assignment of error is without merit. The
substitution of parties was made obviously because the
children of Bartolome Driz are his legal heirs and
therefore could properly represent and protect whatever
interest he had in the case on appeal. But such a
substitution did not and cannot have the effect of making
these substituted parties personally liable for whatever
judgment might be rendered on the appeal against their
deceased father. Article 774 of the Civil Code
provides:
Succession is a mode of acquisition by virtue of
which the property, rights and obligations to the
extent of the value of the inheritance, of a
person are transmitted through his death to
another or others either by his will or by
operation of law. (Emphasis supplied.)
The trial court, therefore, correctly ruled that the remedy
of Leon C. Viardo, the creditor, was to proceed against
the estate of Bartolome Driz.
Moreover, it appears from the evidence that Bartolome
Driz was only a formal party to civil case No. 161, the
real party in interest being his wife Pilar Belmonte. The
subject matter in litigation was Pilar Belmonte's interest
in the parcel of land described in original certificate of
title No. 3484, which appears to be paraphernal
property.
The appellant's fifth and last assignment of error is that
"the trial court erred in not awarding damages to the
plaintiff Leon C. Viardo in Civil Case No. 2004."
Obviously the appellant refers to the prayer in his
complaint that P5,000 be awarded to him against Pilar
Belmonte for attorney's fees. He maintains that appellee
Pilar Belmonte had disposed of all her property with the
intent of avoiding payment of her liability or debt to him.
A review of the record lends credence to the appellant's
claim. Appellee Pilar Belmonte had one-fourth interest in
a parcel of land containing an area of 119.2775
hectares. On 12 May 1943 Leon C. Viardo acquired one-
half interest of Pilar Belmonte's one-fourth interest. In a
partition, where the appellant did not participate but
which he does not impugn, Pilar Belmonte's original one-
fourth interest was segregated and delimited. She was
assigned in that partition and subdivision, Lot 1-A of Plan
PSD-16864, containing an area of 30 hectares (Exhibit
K). Upon the death of her mother, she acquired another
13.2775 hectares. These 13.2775 hectares she sold to
her two daughters and the validity of the sales has been
upheld by this Court. With the original 30 hectares,
however, Pilar Belmonte did not act in good faith when
she sold more than 15 hectares to her daughter Patricia
Driz. Knowing that one-half of said 30 hectares or a total
of 15 hectares belonged to the appellant Leon C. Viardo,
she nevertheless proceeded to enter into the following
transactions: (1) sale of seven and one-half hectares to
Isidoro Mercado, dated 28 June 1948, Exhibit A; (2) sale
of seven hectares to Dominador Asuncion, who later
sold the same parcel or interest to Zacarias Belmonte,
dated 9 March 1949, Exhibit A; (3) subdivision and
partition of her lot 1-A, PSD-16864, into lots 1-E, 1-F, 1-
G, 1-H and 1-I, without the knowledge of her co-owner
Leon C. Viardo, Plan PSD-36340, Exhibit O; (4) sale in
favor of her daughter Patricia Driz of lots 1-H and 1-I,
Plan PSD-36340, containing an area of 20,000 and
55,152 sq. meters, respectively, dated 9 September
1954, Exhibits R and A; and (5) sale in favor of her
daughter Patricia Driz of lot 1-E; Plan PSD-36340,
containing an area of 79,848 sq. meters, dated 11
September 1954, Exhibits S and A.
It will thus be seen that on 9 March 1949, after Pilar
Belmonte had sold seven hectares to Dominador
Asuncion, she had only one-half hectare left to dispose
of, since out of her original thirty hectares (Lot 1-A, PSD-
16864) the appellant Leon C. Viardo had acquired one-
half or fifteen hectares, Isidoro Mercado, seven and one-
half hectares, and Dominador Asuncion, seven hectares.
Fully aware that one-half hectare remained her only
property, Pilar Belmonte nevertheless proceeded to sell
to her daughter Patricia Driz three lots containing a
combined area of more than fifteen hectares. It is
obvious, therefore, that the sales to Patricia Driz cannot
be sustained, regardless of whether Pilar Belmonte was
aware or suspected that she would be held liable for
damages to Leon C. Viardo in civil case No. 161, as in
fact she was held liable by the Court of Appeals about
two weeks after she had executed the sales in favor of
her daughter. The sales above referred to stand on a
different footing from the sales made in favor of Isidoro
Mercado and Dominador Asuncion, because in the latter
sales Pilar Belmonte still had something to sell, namely,
her remaining fifteen hectares. But after she had
disposed of fourteen and one-half hectares to Mercado
and Asuncion she had only one-half hectare left and
therefore could not sell another fifteen hectares.
The trial court, however, did not completely annul the
sales made by Pilar Belmonte in favor of her daughter. It
merely reduced the sale of fifteen hectares to a sale of
one-half hectare, obviously in the belief that the sales
should be sustained to the extent of Pilar Belmonte's
remaining interest. The record shows that both Pilar
Belmonte and her daughter Patricia Driz knew that one-
half hectare only remained as the former's property, but
they nevertheless proceeded to sell and purchase more
than fifteen hectares. When it is considered further that
the final judgment in civil case No. 161 awarded
damages to Leon C. Viardo amounting to 225 cavans of
palay from 1946 (Exhibit H) and that when this judgment
was executed in 1954 no property of Pilar Belmonte
could be found to satisfy the damages (p. 11, t.s.n.), it is
evident that Pilar Belmonte and her daughter Patricia
Driz had conspired to dispose of all the property of Pilar
Belmonte in order to frustrate any award of damages the
Court of Appeals might make in favor of Leon C. Viardo
and that this conspiracy must have taken place at the
latest on 9 September 1954 when Pilar Belmonte
proceeded to sell to her daughter Patricia Driz parcels of
land which no longer belonged to her.
The judgment appealed from is modified by holding and
declaring that (1) Leon C. Viardo, Isidoro M. Mercado,
Zacarias Belmonte and Pilar Belmonte (not Patricia Driz)
are the co-owners pro-indiviso of lot 1-A, Plan PSD-
16864, which is the one-fourth share of Pilar Belmonte in
lot 1, PSD-14371, original certificate of title No. 3484, in
the following proportion: one-half or fifteen hectares
owned by Leon C. Viardo, seven and one-half hectares
by Isidoro M. Mercado, seven hectares by Zacarias
Belmonte, and one-half hectares by Pilar Belmonte,
subject to the rights of Leon C. Viardo to the balance of
his judgment credit against Pilar Belmonte; and (2) Leon
C. Viardo is awarded damages of P1,000 against Pilar
Belmonte. In all other respects, the judgment appealed
from is affirmed, with costs against appellees Pilar
Belmonte and Patricia Driz.
2. ) G.R. No. L-33187 March 31, 1980
CORNELIO PAMPLONA alias GEMINIANO
PAMPLONA and APOLONIA ONTE, petitioners,
vs.
VIVENCIO MORETO, VICTOR MORETO, ELIGIO
MORETO, MARCELO MORETO, PAULINA MORETO,
ROSARIO MORETO, MARTA MORETO, SEVERINA
MENDOZA, PABLO MENDOZA, LAZARO MENDOZA,
VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO
MORETO and LORENZO MENDOZA, respondents.
E.P. Caguioa for petitioners.
Benjamin C. Yatco for respondents.
GUERRERO, J.:
This is a petition for certiorari by way of appeal from the
decision of the Court of Appeals 1 in CA-G.R. No. 35962-
R, entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs.
Cornelio Pamplona, et al., Defendants-Appellants,"
affirming the decision of the Court of First Instance of
Laguna, Branch I at Biñan.
The facts, as stated in the decision appealed from, show
that:
Flaviano Moreto and Monica Maniega were husband
and wife. During their marriage, they acquired adjacent
lots Nos. 1495, 4545, and 1496 of the Calamba Friar
Land Estate, situated in Calamba, Laguna, containing
781-544 and 1,021 square meters respectively and
covered by certificates of title issued in the name of
"Flaviano Moreto, married to Monica Maniega."
The spouses Flaviano Moreto and Monica Maniega
begot during their marriage six (6) children, namely,
Ursulo, Marta, La Paz, Alipio, Pablo, and Leandro, all
surnamed Moreto.
Ursulo Moreto died intestate on May 24, 1959 leaving as
his heirs herein plaintiffs Vivencio, Marcelo, Rosario,
Victor, Paulina, Marta and Eligio, all surnamed Moreto.
Marta Moreto died also intestate on April 30, 1938
leaving as her heir plaintiff Victoria Tuiza.
La Paz Moreto died intestate on July 17, 1954 leaving
the following heirs, namely, herein plaintiffs Pablo,
Severina, Lazaro, and Lorenzo, all surnamed Mendoza.
Alipio Moreto died intestate on June 30, 1943 leaving as
his heir herein plaintiff Josefina Moreto.
Pablo Moreto died intestate on April 25, 1942 leaving no
issue and as his heirs his brother plaintiff Leandro
Moreto and the other plaintiffs herein.
On May 6, 1946, Monica Maniega died intestate in
Calamba, Laguna.
On July 30, 1952, or more than six (6) years after the
death of his wife Monica Maniega, Flaviano Moreto,
without the consent of the heirs of his said deceased
wife Monica, and before any liquidation of the conjugal
partnership of Monica and Flaviano could be effected,
executed in favor of Geminiano Pamplona, married to
defendant Apolonia Onte, the deed of absolute sale
(Exh. "1") covering lot No. 1495 for P900.00. The deed
of sale (Exh. "1") contained a description of lot No. 1495
as having an area of 781 square meters and covered by
transfer certificate of title No. 14570 issued in the name
of Flaviano Moreto, married to Monica Maniega,
although the lot was acquired during their marriage. As a
result of the sale, the said certificate of title was
cancelled and a new transfer certificate of title No. T-
5671 was issued in the name of Geminiano Pamplona
married to Apolonia Onte (Exh. "A").
After the execution of the above-mentioned deed of sale
(Exh. "1"), the spouses Geminiano Pamplona and
Apolonia Onte constructed their house on the eastern
part of lot 1496 as Flaviano Moreto, at the time of the
sale, pointed to it as the land which he sold to
Geminiano Pamplona. Shortly thereafter, Rafael
Pamplona, son of the spouses Geminiano Pamplona
and Apolonia Onte, also built his house within lot 1496
about one meter from its boundary with the adjoining lot.
The vendor Flaviano Moreto and the vendee Geminiano
Pamplona thought all the time that the portion of 781
square meters which was the subject matter of their sale
transaction was No. 1495 and so lot No. 1495 appears
to be the subject matter in the deed of sale (Exh. "1")
although the fact is that the said portion sold thought of
by the parties to be lot No. 1495 is a part of lot No. 1496.
From 1956 to 1960, the spouses Geminiano Pamplona
and Apolonio Onte enlarged their house and they even
constructed a piggery corral at the back of their said
house about one and one-half meters from the eastern
boundary of lot 1496.
On August 12, 1956, Flaviano Moreto died intestate. In
1961, the plaintiffs demanded on the defendants to
vacate the premises where they had their house and
piggery on the ground that Flaviano Moreto had no right
to sell the lot which he sold to Geminiano Pamplona as
the same belongs to the conjugal partnership of Flaviano
and his deceased wife and the latter was already dead
when the sale was executed without the consent of the
plaintiffs who are the heirs of Monica. The spouses
Geminiano Pamplona and Apolonia Onte refused to
vacate the premises occupied by them and hence, this
suit was instituted by the heirs of Monica Maniega
seeking for the declaration of the nullity of the deed of
sale of July 30, 1952 above-mentioned as regards one-
half of the property subject matter of said deed; to
declare the plaintiffs as the rightful owners of the other
half of said lot; to allow the plaintiffs to redeem the one-
half portion thereof sold to the defendants. "After
payment of the other half of the purchase price"; to order
the defendants to vacate the portions occupied by them;
to order the defendants to pay actual and moral
damages and attorney's fees to the plaintiffs; to order the
defendants to pay plaintiffs P120.00 a year from August
1958 until they have vacated the premises occupied by
them for the use and occupancy of the same.
The defendants claim that the sale made by Flaviano
Moreto in their favor is valid as the lot sold is registered
in the name of Flaviano Moreto and they are purchasers
believing in good faith that the vendor was the sole
owner of the lot sold.
After a relocation of lots 1495, 1496 and 4545 made by
agreement of the parties, it was found out that there was
mutual error between Flaviano Moreto and the
defendants in the execution of the deed of sale because
while the said deed recited that the lot sold is lot No.
1495, the real intention of the parties is that it was a
portion consisting of 781 square meters of lot No. 1496
which was the subject matter of their sale transaction.
After trial, the lower court rendered judgment, the
dispositive part thereof being as follows:
WHEREFORE, judgment is hereby
rendered for the plaintiffs declaring the
deed of absolute sale dated July 30,
1952 pertaining to the eastern portion of
Lot 1496 covering an area of 781
square meters null and void as regards
the 390.5 square meters of which
plaintiffs are hereby declared the rightful
owners and entitled to its possession.
The sale is ordered valid with respect to
the eastern one-half (1/2) of 1781
square meters of Lot 1496 measuring
390.5 square meters of which
defendants are declared lawful owners
and entitled to its possession.
After proper survey segregating the
eastern one-half portion with an area of
390.5 square meters of Lot 1496, the
defendants shall be entitled to a
certificate of title covering said portion
and Transfer Certificate of Title No. 9843
of the office of the Register of Deeds of
Laguna shall be cancelled accordingly
and new titles issued to the plaintiffs and
to the defendants covering their
respective portions.
Transfer Certificate of Title No. 5671 of
the office of the Register of Deeds of
Laguna covering Lot No. 1495 and
registered in the name of Cornelio
Pamplona, married to Apolonia Onte, is
by virtue of this decision ordered
cancelled. The defendants are ordered
to surrender to the office of the Register
of Deeds of Laguna the owner's
duplicate of Transfer Certificate of Title
No. 5671 within thirty (30) days after this
decision shall have become final for
cancellation in accordance with this
decision.
Let copy of this decision be furnished
the Register of Deeds for the province of
Laguna for his information and
guidance.
With costs against the defendants. 2
The defendants-appellants, not being satisfied with said
judgment, appealed to the Court of Appeals, which
affirmed the judgment, hence they now come to this
Court.
The fundamental and crucial issue in the case at bar is
whether under the facts and circumstances duly
established by the evidence, petitioners are entitled to
the full ownership of the property in litigation, or only
one-half of the same.
There is no question that when the petitioners purchased
the property on July 30, 1952 from Flaviano Moreto for
the price of P900.00, his wife Monica Maniega had
already been dead six years before, Monica having died
on May 6, 1946. Hence, the conjugal partnership of the
spouses Flaviano Moreto and Monica Maniega had
already been dissolved. (Article 175, (1) New Civil Code;
Article 1417, Old Civil Code). The records show that the
conjugal estate had not been inventoried, liquidated,
settled and divided by the heirs thereto in accordance
with law. The necessary proceedings for the liquidation
of the conjugal partnership were not instituted by the
heirs either in the testate or intestate proceedings of the
deceased spouse pursuant to Act 3176 amending
Section 685 of Act 190. Neither was there an extra-
judicial partition between the surviving spouse and the
heirs of the deceased spouse nor was an ordinary action
for partition brought for the purpose. Accordingly, the
estate became the property of a community between the
surviving husband, Flaviano Moreto, and his children
with the deceased Monica Maniega in the concept of a
co-ownership.
The community property of the
marriage, at the dissolution of this bond
by the death of one of the spouses,
ceases to belong to the legal
partnership and becomes the property
of a community, by operation of law,
between the surviving spouse and the
heirs of the deceased spouse, or the
exclusive property of the widower or the
widow, it he or she be the heir of the
deceased spouse. Every co-owner shall
have full ownership of his part and in the
fruits and benefits derived therefrom,
and he therefore may alienate, assign or
mortgage it, and even substitute another
person in its enjoyment, unless personal
rights are in question. (Marigsa vs.
Macabuntoc, 17 Phil. 107)
In Borja vs. Addision, 44 Phil. 895, 906, the Supreme
Court said that "(t)here is no reason in law why the heirs
of the deceased wife may not form a partnership with the
surviving husband for the management and control of
the community property of the marriage and conceivably
such a partnership, or rather community of property,
between the heirs and the surviving husband might be
formed without a written agreement." In Prades vs.
Tecson, 49 Phil. 230, the Supreme Court held that
"(a)lthough, when the wife dies, the surviving husband,
as administrator of the community property, has authority
to sell the property withut the concurrence of the
children of the marriage, nevertheless this power can be
waived in favor of the children, with the result of bringing
about a conventional ownership in common between the
father and children as to such property; and any one
purchasing with knowledge of the changed status of the
property will acquire only the undivided interest of those
members of the family who join in the act of conveyance.
It is also not disputed that immediately after the
execution of the sale in 1952, the vendees constructed
their house on the eastern part of Lot 1496 which the
vendor pointed out to them as the area sold, and two
weeks thereafter, Rafael who is a son of the vendees,
also built his house within Lot 1496. Subsequently, a
cemented piggery coral was constructed by the vendees
at the back of their house about one and one-half meters
from the eastern boundary of Lot 1496. Both vendor and
vendees believed all the time that the area of 781 sq.
meters subject of the sale was Lot No. 1495 which
according to its title (T.C.T. No. 14570) contains an area
of 781 sq. meters so that the deed of sale between the
parties Identified and described the land sold as Lot
1495. But actually, as verified later by a surveyor upon
agreement of the parties during the proceedings of the
case below, the area sold was within Lot 1496.
Again, there is no dispute that the houses of the spouses
Cornelio Pamplona and Apolonia Onte as well as that of
their son Rafael Pamplona, including the concrete
piggery coral adjacent thereto, stood on the land from
1952 up to the filing of the complaint by the private
respondents on July 25, 1961, or a period of over nine
(9) years. And during said period, the private
respondents who are the heirs of Monica Maniega as
well as of Flaviano Moreto who also died intestate on
August 12, 1956, lived as neighbors to the petitioner-
vendees, yet lifted no finger to question the occupation,
possession and ownership of the land purchased by the
Pamplonas, so that We are persuaded and convinced to
rule that private respondents are in estoppel by laches to
claim half of the property, in dispute as null and void.
Estoppel by laches is a rule of equity which bars a
claimant from presenting his claim when, by reason of
abandonment and negligence, he allowed a long time to
elapse without presenting the same. (International
Banking Corporation vs. Yared, 59 Phil. 92)
We have ruled that at the time of the sale in 1952, the
conjugal partnership was already dissolved six years
before and therefore, the estate became a co-ownership
between Flaviano Moreto, the surviving husband, and
the heirs of his deceased wife, Monica Maniega. Article
493 of the New Civil Code is applicable and it provides a
follows:
Art. 493. Each co-owner shall have the
full ownership of his part and of the fruits
and benefits pertaining thereto, and he
may therefore alienate, assign or
mortgage it, and even substitute another
person in its enjoyment, except when
personal rights are involve. But the
effect of the alienation or the mortgage,
with respect to the co-owners, shall be
limited to the portion which may be
allotted to him in the division upon the
termination of the co-ownership.
We agree with the petitioner that there was a partial
partition of the co-ownership when at the time of the sale
Flaviano Moreto pointed out the area and location of the
781 sq. meters sold by him to the petitioners-vendees on
which the latter built their house and also that whereon
Rafael, the son of petitioners likewise erected his house
and an adjacent coral for piggery.
Petitioners point to the fact that spouses Flaviano
Moreto and Monica Maniega owned three parcels of
land denominated as Lot 1495 having an area of 781 sq.
meters, Lot 1496 with an area of 1,021 sq. meters, and
Lot 4545 with an area of 544 sq. meters. The three lots
have a total area of 2,346 sq. meters. These three
parcels of lots are contiguous with one another as each
is bounded on one side by the other, thus: Lot 4545 is
bounded on the northeast by Lot 1495 and on the
southeast by Lot 1496. Lot 1495 is bounded on the west
by Lot 4545. Lot 1496 is bounded on the west by Lot
4545. It is therefore, clear that the three lots constitute
one big land. They are not separate properties located in
different places but they abut each other. This is not
disputed by private respondents. Hence, at the time of
the sale, the co-ownership constituted or covered these
three lots adjacent to each other. And since Flaviano
Moreto was entitled to one-half pro-indiviso of the entire
land area or 1,173 sq. meters as his share, he had a
perfect legal and lawful right to dispose of 781 sq.
meters of his share to the Pamplona spouses. Indeed,
there was still a remainder of some 392 sq. meters
belonging to him at the time of the sale.
We reject respondent Court's ruling that the sale was
valid as to one-half and invalid as to the other half for the
very simple reason that Flaviano Moreto, the vendor,
had the legal right to more than 781 sq. meters of the
communal estate, a title which he could dispose,
alienate in favor of the vendees-petitioners. The title may
be pro-indiviso or inchoate but the moment the co-owner
as vendor pointed out its location and even indicated the
boundaries over which the fences were to be erectd
without objection, protest or complaint by the other co-
owners, on the contrary they acquiesced and tolerated
such alienation, occupation and possession, We rule
that a factual partition or termination of the co-
ownership, although partial, was created, and barred not
only the vendor, Flaviano Moreto, but also his heirs, the
private respondents herein from asserting as against the
vendees-petitioners any right or title in derogation of the
deed of sale executed by said vendor Flaiano Moreto.
Equity commands that the private respondents, the
successors of both the deceased spouses, Flaviano
Moreto and Monica Maniega be not allowed to impugn
the sale executed by Flaviano Moreto who indisputably
received the consideration of P900.00 and which he,
including his children, benefitted from the same.
Moreover, as the heirs of both Monica Maniega and
Flaviano Moreto, private respondents are duty-bound to
comply with the provisions of Articles 1458 and 1495,
Civil Code, which is the obligation of the vendor of the
property of delivering and transfering the ownership of
the whole property sold, which is transmitted on his
death to his heirs, the herein private respondents. The
articles cited provide, thus:
Art. 1458. By the contract of sale one of
the contracting parties obligates himself
to transfer the ownership of and to
deliver a determinate thing, and the
other part to pay therefore a price
certain in money or its equivalent.
A contract of sale may be absolute or
conditionial.
Art. 1495. The vendor is bound to
transfer the ownership of and deliver, as
well as warrant the thing which is the
object of the sale.
Under Article 776, New Civil Code, the inheritance
which private respondents received from their deceased
parents and/or predecessors-in-interest included all the
property rights and obligations which were not
extinguished by their parents' death. And under Art.
1311, paragraph 1, New Civil Code, the contract of sale
executed by the deceased Flaviano Moreto took effect
between the parties, their assigns and heirs, who are the
private respondents herein. Accordingly, to the private
respondents is transmitted the obligation to deliver in full
ownership the whole area of 781 sq. meters to the
petitioners (which was the original obligation of their
predecessor Flaviano Moreto) and not only one-half
thereof. Private respondents must comply with said
obligation.
The records reveal that the area of 781 sq. meters sold
to and occupied by petitioners for more than 9 years
already as of the filing of the complaint in 1961 had been
re-surveyed by private land surveyor Daniel Aranas.
Petitioners are entitled to a segregation of the area from
Transfer Certificate of Title No. T-9843 covering Lot 1496
and they are also entitled to the issuance of a new
Transfer Certificate of Title in their name based on the
relocation survey.
WHEREFORE, IN VIEW OF THE FOREGOING, the
judgment appealed from is hereby AFFIRMED with
modification in the sense that the sale made and
executed by Flaviano Moreto in favor of the petitioners-
vendees is hereby declared legal and valid in its entirely.
Petitioners are hereby declared owners in full ownership
of the 781 sq. meters at the eastern portion of Lot 1496
now occupied by said petitioners and whereon their
houses and piggery coral stand.
The Register of Deeds of Laguna is hereby ordered to
segregate the area of 781 sq. meters from Certificate of
Title No. 9843 and to issue a new Transfer Certificate of
Title to the petitioners covering the segregated area of
781 sq. meters.
No costs.
SO ORDERED.
3. ) G.R. No. 113725 June 29, 2000
JOHNNY S. RABADILLA,1 petitioner,
vs.
COURT OF APPEALS AND MARIA
MARLENA2 COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of
Appeals,3 dated December 23, 1993, in CA-G.R. No. CV-
35555, which set aside the decision of Branch 52 of the
Regional Trial Court in Bacolod City, and ordered the
defendants-appellees (including herein
petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey
title over Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of
testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-
in-interest of the herein petitioner, Johnny S. Rabadilla,
was instituted as a devisee of 511, 855 square meters of
that parcel of land surveyed as Lot No. 1392 of the
Bacolod Cadastre. The said Codicil, which was duly
probated and admitted in Special Proceedings No. 4046
before the then Court of First Instance of Negros
Occidental, contained the following provisions:
"FIRST
I give, leave and bequeath the following property owned
by me to Dr. Jorge Rabadilla resident of 141 P.
Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-
4002 (10942), which is registered in my name
according to the records of the Register of
Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of
me, the aforementioned property and the rights
which I shall set forth hereinbelow, shall be
inherited and acknowledged by the children and
spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition (Codicil),
that should I die and Jorge Rabadilla shall have already
received the ownership of the said Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10942), and also at the time that the
lease of Balbinito G. Guanzon of the said lot shall expire,
Jorge Rabadilla shall have the obligation until he dies,
every year to give to Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic sugar, until the said
Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall
give Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10492), shall
have the obligation to still give yearly, the sugar as
specified in the Fourth paragraph of his testament, to
Maria Marlina Coscolluela y Belleza on the month of
December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No.
1392, in the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease, mortgage
this said Lot, the buyer, lessee, mortgagee, shall have
also the obligation to respect and deliver yearly ONE
HUNDRED (100) piculs of sugar to Maria Marlina
Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY
FIVE (25) piculs of Domestic, until Maria Marlina shall
die, lastly should the buyer, lessee or the mortgagee of
this lot, not have respected my command in this my
addition (Codicil), Maria Marlina Coscolluela y Belleza,
shall immediately seize this Lot No. 1392 from my heir
and the latter's heirs, and shall turn it over to my near
desendants, (sic) and the latter shall then have the
obligation to give the ONE HUNDRED (100) piculs of
sugar until Maria Marlina shall die. I further command in
this my addition (Codicil) that my heir and his heirs of
this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot
negotiate with others than my near descendants and my
sister."4
Pursuant to the same Codicil, Lot No. 1392 was
transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in
his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his
wife Rufina and children Johnny (petitioner), Aurora,
Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y
Belleza Villacarlos brought a complaint, docketed as
Civil Case No. 5588, before Branch 52 of the Regional
Trial Court in Bacolod City, against the above-mentioned
heirs of Dr. Jorge Rabadilla, to enforce the provisions of
subject Codicil. The Complaint alleged that the
defendant-heirs violated the conditions of the Codicil, in
that:
1. Lot No. 1392 was mortgaged to the Philippine
National Bank and the Republic Planters Bank in
 disregard of the testatrix's specific instruction to
sell, lease, or mortgage only to the near
descendants and sister of the testatrix.
2. Defendant-heirs failed to comply with their
obligation to deliver one hundred (100) piculs of
sugar (75 piculs export sugar and 25 piculs
domestic sugar) to plaintiff Maria Marlena
Coscolluela y Belleza from sugar crop years
1985 up to the filing of the complaint (1985) as
mandated by the Codicil, despite repeated
demands for compliance.
3. The banks failed to comply with the 6th
paragraph of the Codicil which provided that in
case of the sale, lease, or mortgage of the
property, the buyer, lessee, or mortgagee shall
likewise have the obligation to deliver 100 piculs
of sugar per crop year to herein private
respondent.
The plaintiff then prayed that judgment be rendered
ordering defendant-heirs to reconvey/return-Lot No.
1392 to the surviving heirs of the late Aleja Belleza, the
cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a
new certificate of title in the names of the surviving heirs
of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were
declared in default but on March 28, 1990 the Order of
Default was lifted, with respect to defendant Johnny S.
Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private
respondent) and a certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the property and
acting as attorney-in-fact of defendant-heirs, arrived at
an amicable settlement and entered into a Memorandum
of Agreement on the obligation to deliver one hundred
piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in
Entry No. 49074 of TCT No. 44489 will be delivered not
later than January of 1989, more specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then
existing in any of our names, Mary Rose Rabadilla y
Azurin or Alan Azurin, during December of each sugar
crop year, in Azucar Sugar Central; and, this is
considered compliance of the annuity as mentioned, and
in the same manner will compliance of the annuity be in
the next succeeding crop years.
That the annuity above stated for crop year 1985-86,
1986-87, and 1987-88, will be complied in cash
equivalent of the number of piculs as mentioned therein
and which is as herein agreed upon, taking into
consideration the composite price of sugar during each
sugar crop year, which is in the total amount of ONE
HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or
delivered on a staggered cash installment, payable on or
before the end of December of every sugar crop year, to
wit:
For 1985-86, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1991-92."5
However, there was no compliance with the aforesaid
Memorandum of Agreement except for a partial delivery
of 50.80 piculs of sugar corresponding to sugar crop
year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out
with a decision, dismissing the complaint and disposing
as follows:
"WHEREFORE, in the light of the aforegoing findings,
the Court finds that the action is prematurely filed as no
cause of action against the defendants has as yet arose
in favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction
from them simply because they are the children of Jorge
Rabadilla, the title holder/owner of the lot in question,
does not warrant the filing of the present complaint. The
remedy at bar must fall. Incidentally, being in the
category as creditor of the left estate, it is opined that
plaintiff may initiate the intestate proceedings, if only to
establish the heirs of Jorge Rabadilla and in order to
give full meaning and semblance to her claim under the
Codicil.
In the light of the aforegoing findings, the Complaint
being prematurely filed is DISMISSED without prejudice.
SO ORDERED."6
On appeal by plaintiff, the First Division of the Court of
Appeals reversed the decision of the trial court;
ratiocinating and ordering thus:
"Therefore, the evidence on record having established
plaintiff-appellant's right to receive 100 piculs of sugar
annually out of the produce of Lot No. 1392; defendants-
appellee's obligation under Aleja Belleza's codicil, as
heirs of the modal heir, Jorge Rabadilla, to deliver such
amount of sugar to plaintiff-appellant; defendants-
appellee's admitted non-compliance with said obligation
since 1985; and, the punitive consequences enjoined by
both the codicil and the Civil Code, of seizure of Lot No.
1392 and its reversion to the estate of Aleja Belleza in
case of such non-compliance, this Court deems it proper
to order the reconveyance of title over Lot No. 1392 from
the estates of Jorge Rabadilla to the estate of Aleja
Belleza. However, plaintiff-appellant must institute
separate proceedings to re-open Aleja Belleza's estate,
secure the appointment of an administrator, and
distribute Lot No. 1392 to Aleja Belleza's legal heirs in
order to enforce her right, reserved to her by the codicil,
to receive her legacy of 100 piculs of sugar per year out
of the produce of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE
and another one entered ordering defendants-appellees,
as heirs of Jorge Rabadilla, to reconvey title over Lot No.
1392, together with its fruits and interests, to the estate
of Aleja Belleza.
SO ORDERED."7
Dissatisfied with the aforesaid disposition by the Court of
Appeals, petitioner found his way to this Court via the
present petition, contending that the Court of Appeals
erred in ordering the reversion of Lot 1392 to the estate
of the testatrix Aleja Belleza on the basis of paragraph 6
of the Codicil, and in ruling that the testamentary
institution of Dr. Jorge Rabadilla is a modal institution
within the purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in
resolving the appeal in accordance with Article 882 of
the New Civil Code on modal institutions and in deviating
from the sole issue raised which is the absence or
prematurity of the cause of action. Petitioner maintains
that Article 882 does not find application as there was no
modal institution and the testatrix intended a mere
simple substitution - i.e. the instituted heir, Dr. Jorge
Rabadilla, was to be substituted by the testatrix's "near
descendants" should the obligation to deliver the fruits to
herein private respondent be not complied with. And
since the testatrix died single and without issue, there
can be no valid substitution and such testamentary
provision cannot be given any effect.
The petitioner theorizes further that there can be no valid
substitution for the reason that the substituted heirs are
not definite, as the substituted heirs are merely referred
to as "near descendants" without a definite identity or
reference as to who are the "near descendants" and
therefore, under Articles 843 8 and 8459 of the New Civil
Code, the substitution should be deemed as not written.
The contentions of petitioner are untenable. Contrary to
his supposition that the Court of Appeals deviated from
the issue posed before it, which was the propriety of the
dismissal of the complaint on the ground of prematurity
of cause of action, there was no such deviation. The
Court of Appeals found that the private respondent had a
cause of action against the petitioner. The disquisition
made on modal institution was, precisely, to stress that
the private respondent had a legally demandable right
against the petitioner pursuant to subject Codicil; on
which issue the Court of Appeals ruled in accordance
with law.
It is a general rule under the law on succession that
successional rights are transmitted from the moment of
death of the decedent10 and compulsory heirs are called
to succeed by operation of law. The legitimate children
and descendants, in relation to their legitimate parents,
and the widow or widower, are compulsory heirs. 11 Thus,
the petitioner, his mother and sisters, as compulsory
heirs of the instituted heir, Dr. Jorge Rabadilla,
succeeded the latter by operation of law, without need of
further proceedings, and the successional rights were
transmitted to them from the moment of death of the
decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance
includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at
the time of his death. And since obligations not
extinguished by death also form part of the estate of the
decedent; corollarily, the obligations imposed by the
Codicil on the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory heirs upon his
death.
In the said Codicil, testatrix Aleja Belleza devised Lot No.
1392 to Dr. Jorge Rabadilla, subject to the condition that
the usufruct thereof would be delivered to the herein
private respondent every year. Upon the death of Dr.
Jorge Rabadilla, his compulsory heirs succeeded to his
rights and title over the said property, and they also
assumed his (decedent's) obligation to deliver the fruits
of the lot involved to herein private respondent. Such
obligation of the instituted heir reciprocally corresponds
to the right of private respondent over the usufruct, the
fulfillment or performance of which is now being
demanded by the latter through the institution of the
case at bar. Therefore, private respondent has a cause
of action against petitioner and the trial court erred in
dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil
Code on modal institutions is not applicable because
what the testatrix intended was a substitution - Dr. Jorge
Rabadilla was to be substituted by the testatrix's near
descendants should there be noncompliance with the
obligation to deliver the piculs of sugar to private
respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person
or persons to take the place of the heir or heirs first
instituted. Under substitutions in general, the testator
may either (1) provide for the designation of another heir
to whom the property shall pass in case the original heir
should die before him/her, renounce the inheritance or
be incapacitated to inherit, as in a simple
substitution,12 or (2) leave his/her property to one person
with the express charge that it be transmitted
subsequently to another or others, as in a
fideicommissary substitution.13 The Codicil sued upon
contemplates neither of the two.
In simple substitutions, the second heir takes the
inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.14 In the case
under consideration, the provisions of subject Codicil do
not provide that should Dr. Jorge Rabadilla default due
to predecease, incapacity or renunciation, the testatrix's
near descendants would substitute him. What the Codicil
provides is that, should Dr. Jorge Rabadilla or his heirs
not fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned over to
the testatrix's near descendants.
Neither is there a fideicommissary substitution here and
on this point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to preserve
the property and to transmit the same later to the
second heir.15 In the case under consideration, the
instituted heir is in fact allowed under the Codicil to
alienate the property provided the negotiation is with the
near descendants or the sister of the testatrix. Thus, a
very important element of a fideicommissary substitution
is lacking; the obligation clearly imposing upon the first
heir the preservation of the property and its transmission
to the second heir. "Without this obligation to preserve
clearly imposed by the testator in his will, there is no
fideicommissary substitution."16 Also, the near
descendants' right to inherit from the testatrix is not
definite. The property will only pass to them should Dr.
Jorge Rabadilla or his heirs not fulfill the obligation to
deliver part of the usufruct to private respondent.
Another important element of a fideicommissary
substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the property
is transmitted must not be beyond one degree from the
first heir or the fiduciary. A fideicommissary substitution
is therefore, void if the first heir is not related by first
degree to the second heir. 17 In the case under scrutiny,
the near descendants are not at all related to the
instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the
institution of Dr. Jorge Rabadilla under subject Codicil is
in the nature of a modal institution and therefore, Article
882 of the New Civil Code is the provision of law in point.
Articles 882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution or
the application of the property left by the testator, or the
charge imposed on him, shall not be considered as a
condition unless it appears that such was his intention.
That which has been left in this manner may be claimed
at once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator
and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should
disregard this obligation.
Art. 883. When without the fault of the heir, an institution
referred to in the preceding article cannot take effect in
the exact manner stated by the testator, it shall be
complied with in a manner most analogous to and in
conformity with his wishes.
The institution of an heir in the manner prescribed in
Article 882 is what is known in the law of succession as
an institucion sub modo or a modal institution. In a
modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property
left by the testator, or (3) the charge imposed by the
testator upon the heir.18 A "mode" imposes an obligation
upon the heir or legatee but it does not affect the efficacy
of his rights to the succession. 19 On the other hand, in a
conditional testamentary disposition, the condition must
happen or be fulfilled in order for the heir to be entitled to
succeed the testator. The condition suspends but does
not obligate; and the mode obligates but does not
suspend.20 To some extent, it is similar to a resolutory
condition.21
From the provisions of the Codicil litigated upon, it can
be gleaned unerringly that the testatrix intended that
subject property be inherited by Dr. Jorge Rabadilla. It is
likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his successors-
in-interest to deliver one hundred piculs of sugar to the
herein private respondent, Marlena Coscolluela Belleza,
during the lifetime of the latter. However, the testatrix did
not make Dr. Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee, dependent on
the performance of the said obligation. It is clear, though,
that should the obligation be not complied with, the
property shall be turned over to the testatrix's near
descendants. The manner of institution of Dr. Jorge
Rabadilla under subject Codicil is evidently modal in
nature because it imposes a charge upon the instituted
heir without, however, affecting the efficacy of such
institution.
Then too, since testamentary dispositions are generally
acts of liberality, an obligation imposed upon the heir
should not be considered a condition unless it clearly
appears from the Will itself that such was the intention of
the testator. In case of doubt, the institution should be
considered as modal and not conditional.22
Neither is there tenability in the other contention of
petitioner that the private respondent has only a right of
usufruct but not the right to seize the property itself from
the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or
mortgagee.
In the interpretation of Wills, when an uncertainty arises
on the face of the Will, as to the application of any of its
provisions, the testator's intention is to be ascertained
from the words of the Will, taking into consideration the
circumstances under which it was made. 23 Such
construction as will sustain and uphold the Will in all its
parts must be adopted.24
Subject Codicil provides that the instituted heir is under
obligation to deliver One Hundred (100) piculs of sugar
yearly to Marlena Belleza Coscuella. Such obligation is
imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should they
sell, lease, mortgage or otherwise negotiate the property
involved. The Codicil further provides that in the event
that the obligation to deliver the sugar is not respected,
Marlena Belleza Coscuella shall seize the property and
turn it over to the testatrix's near descendants. The non-
performance of the said obligation is thus with the
sanction of seizure of the property and reversion thereof
to the testatrix's near descendants. Since the said
obligation is clearly imposed by the testatrix, not only on
the instituted heir but also on his successors-in-interest,
the sanction imposed by the testatrix in case of non-
fulfillment of said obligation should equally apply to the
instituted heir and his successors-in-interest.
Similarly unsustainable is petitioner's submission that by
virtue of the amicable settlement, the said obligation
imposed by the Codicil has been assumed by the
lessee, and whatever obligation petitioner had become
the obligation of the lessee; that petitioner is deemed to
have made a substantial and constructive compliance of
his obligation through the consummated settlement
between the lessee and the private respondent, and
having consummated a settlement with the petitioner,
the recourse of the private respondent is the fulfillment of
the obligation under the amicable settlement and not the
seizure of subject property.
Suffice it to state that a Will is a personal, solemn,
revocable and free act by which a person disposes of his
property, to take effect after his death.25 Since the Will
expresses the manner in which a person intends how his
properties be disposed, the wishes and desires of the
testator must be strictly followed. Thus, a Will cannot be
the subject of a compromise agreement which would
thereby defeat the very purpose of making a Will.
WHEREFORE, the petition is hereby DISMISSED and
the decision of the Court of Appeals, dated December
23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No
pronouncement as to costs
SO ORDERED.
OPENING OF SUCCESSION
1. ) G.R. No. L-4963 January 29, 1953
MARIA USON, plaintiff-appellee,
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA,
CONRADO NEBREDA, DOMINADOR NEBREDA, AND
FAUSTINO NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and
possession of five (5) parcels of land situated in the
Municipality of Labrador, Province of Pangasinan, filed
by Maria Uson against Maria del Rosario and her four
children named Concepcion, Conrado, Dominador, and
Faustino, surnamed Nebreda, who are all of minor age,
before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who
upon his death in 1945 left the lands involved in this
litigation. Faustino Nebreda left no other heir except his
widow Maria Uson. However, plaintiff claims that when
Faustino Nebreda died in 1945, his common-law wife
Maria del Rosario took possession illegally of said lands
thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense
that on February 21, 1931, Maria Uson and her
husband, the late Faustino Nebreda, executed a public
document whereby they agreed to separate as husband
and wife and, in consideration of their separation, Maria
Uson was given a parcel of land by way of alimony and
in return she renounced her right to inherit any other
property that may be left by her husband upon his death
(Exhibit 1).
After trial, at which both parties presented their
respective evidence, the court rendered decision
ordering the defendants to restore to the plaintiff the
ownership and possession of the lands in dispute
without special pronouncement as to costs. Defendants
interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is
the lawful wife of Faustino Nebreda, former owner of the
five parcels of lands litigated in the present case. There
is likewise no dispute that Maria del Rosario, one of the
defendants-appellants, was merely a common-law wife
of the late Faustino Nebreda with whom she had four
illegitimate children, her now co-defendants. It likewise
appears that Faustino Nebreda died in 1945 much prior
to the effectivity of the new Civil Code. With this
background, it is evident that when Faustino Nebreda
died in 1945 the five parcels of land he was seized of at
the time passed from the moment of his death to his only
heir, his widow Maria Uson (Article 657, old Civil
Code).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.
2. ) 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
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for
defendant-appellant.
REYES, J.B.L., J.:p
Of these cases, the first, numbered L-28040 is an appeal
by Tasiana Ongsingco Vda. de de Borja, special
administratrix of the testate estate of Francisco de
Borja,1 from the approval of a compromise agreement by
the Court of First Instance of Rizal, Branch I, in its
Special Proceeding No. R-7866, entitled, "Testate Estate
of Josefa Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose
Borja from the disapproval of the same compromise
agreement by the Court of First Instance of Nueva Ecija,
Branch II, in its Special Proceeding No. 832, entitled,
"Testate Estate of Francisco de Borja, Tasiana O. Vda.
de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator
Jose de Borja from the decision of the Court of First
Instance of Rizal, Branch X, in its Civil Case No. 7452,
declaring the Hacienda Jalajala Poblacion, which is the
main object of the aforesaid compromise agreement, as
the separate and exclusive property of the late Francisco
de Borja and not a conjugal asset of the community with
his first wife, Josefa Tangco, and that said hacienda
pertains exclusively to his testate estate, which is under
administrator in Special Proceeding No. 832 of the Court
of First Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death
of his wife Josefa Tangco on 6 October 1940, filed a
petition for the probate of her will which was docketed as
Special Proceeding No. 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.
3. ) 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 4. ) G.R. No. L-41171 July 23, 1987
survives or not depends on the nature of the action and
the damage sued for. 6 In the causes of action which INTESTATE ESTATE OF THE LATE VITO
survive the wrong complained affects primarily and BORROMEO, PATROCINIO BORROMEO-
principally property and property rights, the injuries to the HERRERA, petitioner,
person being merely incidental, while in the causes of vs.
action which do not survive the injury complained of is to FORTUNATO BORROMEO and HON. FRANCISCO P.
the person, the property and rights of property affected BURGOS, Judge of the Court of First Instance of
being incidental. 7 Following the foregoing criterion the Cebu, Branch II, respondents.
claim of the deceased plaintiff which is an action to quiet
title over the parcels of land in litigation affects primarily x - - - - - - - - - - - - - - - - - - - - - - -x
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 No. L-55000 July 23, 1987
representative of the deceased plaintiff to appear and to
be substituted for her. But what the respondent Court IN THE MATTER OF THE ESTATE OF VITO
did, upon being informed by the counsel for the BORROMEO, DECEASED, PILAR N. BORROMEO,
deceased plaintiff that the latter was dead, was to MARIA B. PUTONG, FEDERICO V. BORROMEO,
dismiss the complaint. This should not have been done JOSE BORROMEO, CONSUELO B. MORALES, AND
for under the same Section 17, Rule 3 of the Rules of CANUTO V. BORROMEO, JR., heirs-appellants,
Court, it is even the duty of the court, if the legal vs.
representative fails to appear, to order the opposing FORTUNATO BORROMEO, claimant-appellee.
party to procure the appointment of a legal
representative of the deceased. In the instant case the x - - - - - - - - - - - - - - - - - - - - - - -x
respondent Court did not have to bother ordering the
opposing party to procure the appointment of a legal No. L-62895 July 23, 1987
representative of the deceased because her counsel has
not only asked that the minor children be substituted for
JOSE CUENCO BORROMEO, petitioner,
her but also suggested that their uncle be appointed as
vs.
guardian ad litem for them because their father is busy in
HONORABLE COURT OF APPEALS, HON.
Manila earning a living for the family. But the respondent
FRANCISCO P. BURGOS, As presiding Judge of the
Court refused the request for substitution on the ground
(now) Regional Trial Court, Branch XV, Region VII,
that the children were still minors and cannot sue in
RICARDO V. REYES, as Administrator of the Estate
court. This is another grave error because the
of Vito Borromeo in Sp. Proc. No. 916-R,
respondent Court ought to have known that under the
NUMERIANO G. ESTENZO and DOMINGO L.
same Section 17, Rule 3 of the Rules of Court, the court
ANTIGUA, respondents.
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 x - - - - - - - - - - - - - - - - - - - - - - -x
Court that the uncle of the minors be appointed to act as
guardian ad litem for them. Unquestionably, the No. L-63818 July 23, 1987
respondent Court has gravely abused its discretion in
not complying with the clear provision of the Rules of DOMINGO ANTIGUA AND RICARDO V. REYES, as
Court in dismissing the complaint of the plaintiff in Civil Administrator of the Intestate Estate of VITO
Case No. 856 and refusing the substitution of parties in BORROMEO, Sp. Proceedings No. 916-R, Regional
the case. Trial Court of Cebu, joined by HON. JUDGE
FRANCISCO P. BURGOS, as Presiding Judge of
IN VIEW OF THE FOREGOING, the order of the Branch XV of the Regional Trial Court of Cebu, as a
respondent Court dismissing the complaint in Civil Case formal party, and ATTYS. FRANCIS M. ZOSA,
No. 856 of the Court of First Instance of Abra and the GAUDIOSO RUIZ and NUMERIANO
motions for reconsideration of the order of dismissal of ESTENZO, petitioners,
said complaint are set aside and the respondent Court is vs.
hereby directed to allow the substitution of the minor HONORABLE INTERMEDIATE APPELLATE COURT,
children, who are the petitioners therein for the JOSE CUENCO BORROMEO, and PETRA O.
deceased plaintiff and to appoint a qualified person as BORROMEO, respondents.
guardian ad litem for them. Without pronouncement as
to costs. x - - - - - - - - - - - - - - - - - - - - - - -x

SO ORDERED. 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 dd. Jose Borromeo
petitioners herein.
ee. Consuelo Borromeo
c. Crispin Borromeo, who is still alive.
ff. Pilar Borromeo
4. Anecita Borromeo, sister of Vito Borromeo, died
ahead of him and left an only daughter, Aurora B. gg. Salud Borromeo
Ocampo, who died on Jan. 30, 1950 leaving the
following children: hh. Patrocinio Borromeo Herrera

a. Anecita Ocampo Castro c. Maximo Borromeo, who died in July, 1948

b. Ramon Ocampo d. Matilde Borromeo, who died on Aug. 6, 1946

c. Lourdes Ocampo e. Andres Borromeo, who died on Jan. 3, 1923,

but survived by his children:
d. Elena Ocampo, all living, and
aa. Maria Borromeo Atega
e. Antonieta Ocampo Barcenilla (deceased),
survived by claimant Jose Barcenilla, Jr. bb. Luz Borromeo

5. Cosme Borromeo, another brother of Vito Borromeo, cc. Hermenegilda Borromeo

died before the war and left the following children: Nonnenkamp

a. Marcial Borromeo dd. Rosario Borromeo

b. Carlos Borromeo,who died on Jan. 18, ee. Fe Borromeo Queroz

1965,survived by his wife, Remedios Alfonso,
and his only daughter, Amelinda Borromeo
Talam
c. Asuncion Borromeo
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:

d. Florentina Borromeo, who died in 1948. 1. Jose Cuenco Borromeo

e. Amilio Borromeo, who died in 1944. 2. Judge Crispin Borromeo

f. Carmen Borromeo, who died in 1925. 3. Vitaliana Borromeo

The last three died leaving no issue. 4. Patrocinio Borromeo Herrera

6. Jose Ma. Borromeo, another brother of Vito 5. Salud Borromeo

Borromeo, died before the war and left the following
children:
6. Asuncion Borromeo
a. Exequiel Borromeo,who died on December
29, 1949 7. Marcial Borromeo

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.
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.
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

In this case, however, the purported "Waiver of
trial court had jurisdiction to pass upon the validity of the
Hereditary Rights" cannot be considered to be effective.
waiver agreement. It must be noted that in Special
For a waiver to exist, three elements are essential: (1)
Proceedings No. 916-R the lower court disallowed the
the existence of a right; (2) the knowledge of the
probate of the will and declared it as fake. Upon appeal,
existence thereof; and (3) an intention to relinquish such
this Court affirmed the decision of the lower court on
right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116,
March 30, 1967, in G.R. No. L-18498. Subsequently,
8120). The intention to waive a right or advantage must
several parties came before the lower court filing claims
be shown clearly and convincingly, and when the only
or petitions alleging themselves as heirs of the intestate
proof of intention rests in what a party does, his act
estate of Vito Borromeo. We see no impediment to the
should be so manifestly consistent with, and indicative of
trial court in exercising jurisdiction and trying the said
an intent to, voluntarily relinquish the particular right or
claims or petitions. Moreover, the jurisdiction of the trial
advantage that no other reasonable explanation of his
court extends to matters incidental and collateral to the
conduct is possible (67 C.J., 311). (Fernandez v. Sebido,
exercise of its recognized powers in handling the
et al., 70 Phil., 151, 159).
settlement of the estate.
The circumstances of this case show that the signatories
In view of the foregoing, the questioned order of the trial
to the waiver document did not have the clear and
court dated December 24, 1974, is hereby SET ASIDE.
convincing intention to relinquish their rights, Thus: (1)
On October 27, 1967. Fortunato, Tomas, and Amelia
Borromeo filed a pleading entitled "Compliance" wherein G.R. No. 55000
they submitted a proposal for the amicable settlement of
the case. In that Compliance, they proposed to concede This case was originally an appeal to the Court of
to all the eight (8) intestate heirs of Vito Borromeo all 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.
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

The allegations of the private respondents in their motion
Special Proceeding No. 916-R requires only the
for inhibition, more specifically, the insistence of the trial
appraisal of the attorney's fees of the lawyers-claimants
judge to sell the entire estate at P6,700,000.00, where
who were individually hired by their respective heirs-
4/9 group of heirs objected, cannot easily be ignored.
clients, so their attorney's fees should be legally charged
Suspicion of partiality on the part of a trial judge must be
against their respective clients and not against the
avoided at all costs. In the case of Bautista v.
estate.
Rebeuno (81 SCRA 535), this Court stated:

On the other hand, the respondents maintain that the

... The Judge must maintain and preserve the
petition is a dilatory one and barred by res
trust and faith of the parties litigants. He must
judicata because this Court on July 8, 1981, in G.R. No.
hold himself above reproach and suspicion. At
54232 directed the respondent Judge to expedite the
the very first sign of lack of faith and trust to his
settlement and liquidation of the decedent's estate. They
actions, whether well grounded or not, the Judge
claim that this resolution, which was already final and
has no other alternative but inhibit himself from
executory, was in effect reversed and nullified by the
the case. A judge may not be legally Prohibited
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.
5. ) G.R. No. 129008 January 13, 2004
TEODORA A. RIOFERIO, VERONICA O.
EVANGELISTA assisted by her husband ZALDY
EVANGELISTA, ALBERTO ORFINADA, and ROWENA
O. UNGOS, assisted by her husband BEDA
UNGOS, petitioners,
vs.
COURT OF APPEALS, ESPERANZA P. ORFINADA,
LOURDES P. ORFINADA, ALFONSO ORFINADA,
NANCY P. ORFINADA, ALFONSO JAMES P.
ORFINADA, CHRISTOPHER P. ORFINADA and
ANGELO P. ORFINADA,respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of
the estate pending the appointment of an administrator
is the issue in this case.
This Petition for Review on Certiorari, under Rule 45 of
the Rules of Court, seeks to set aside the Decision1 of
the Court of Appeals in CA-G.R. SP No. 42053 dated
January 31, 1997, as well as its Resolution2 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
Veronica5, 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 Order14 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
reconsideration15 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 Decision19 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.23Subsequently, 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 6,24in Rule 16 thereof.
Just as no blame of abuse of discretion can be laid on
the lower court’s 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 326 and Section 2, Rule 8727 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.
6. ) [G.R. No. 94918. September 2, 1992.]
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES,
MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE
LEON and REGINIO I. SUAREZ, Petitioners, v. THE
COURT OF APPEALS, VALENTE RAYMUNDO,
VIOLETA RAYMUNDO, MA. CONCEPCION VITO and
VIRGINIA BANTA, Respondents.
Villareal Law Offices, for Petitioners.
Nelson Loyola for Private Respondent.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME;
PROPRIETARY INTEREST OF THE CHILDREN,
DIFFERENT AND ADVERSE FROM THEIR MOTHER.
— The legitime of the surviving spouse is equal to the
legitime of each child. The proprietary interest of
petitioners in the levied and auctioned property is
different from and adverse to that of their mother.
Petitioners became co-owners of the property not
because of their mother but through their own right as
children of their deceased father. Therefore, petitioners
are not barred in any way from instituting the action to
annul the auction sale to protect their own interest.
DECISION
NOCON, J.:
The ultimate issue before Us is whether or not private
respondents can validly acquire all the five (5) parcels of
land co-owned by petitioners and registered in the name
of petitioner’s deceased father. Marcelo Suarez, whose
estate has not been partitioned or liquidated, after the
said properties were levied and publicly sold en masse
to private respondents to satisfy the personal judgment
debt of Teofista Suarez, the surviving spouse of Marcelo
Suarez, mother of herein petitioners.chanrobles law
library
The undisputed facts of the case are as
follows:chanrob1es virtual 1aw library
Herein petitioners are brothers and sisters. Their father
died in 1955 and since then his estate consisting of
several valuable parcels of land in Pasig, Metro Manila
has lot been liquidated or partitioned. In 1977,
petitioners’ widowed mother and Rizal Realty
Corporation lost in the consolidated cases for rescission
of contract and for damages, and were ordered by
Branch 1 of the then Court of First Instance of Rizal (now
Branch 151, RTC of Pasig) to pay, jointly and severally,
herein respondents the aggregate principal amount of
about P70,000 as damages. 1 removing or alienating improvements thereon; and to
The judgment against petitioner’s mother and Rizal
Realty Corporation having become final and executory,
five (5) valuable parcel of land in Pasig, Metro Manila,
(worth to be millions then) were levied and sold on
execution on June 24, 1983 in favor of the private
respondents as the highest bidder for the amount of
P94,170.000. Private respondents were then issued a
certificate of sale which was subsequently registered or
August 1, 1983.
On June 21, 1984 before the expiration of the
redemption period, petitioners filed a reinvindicatory
action 2 against private respondents and the Provincial
Sheriff of Rizal, thereafter docketed as Civil Case No.
51203, for the annulment of the auction sale and the
recovery of the ownership of the levied pieces of
property. Therein, they alleged, among others, that being
strangers to the case decided against their mother, they
cannot be held liable therefor and that the five (5)
parcels of land, of which they are co-owners, can neither
be levied nor sold on execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued to
private respondents a final deed of sale 3 over the
properties.
On October 22, 1984, Teofista Suarez joined by herein
petitioners filed with Branch 151 a Motion for
Reconsideration 4 of the Order dated October 10, 1984,
claiming that the parcels of land are co-owned by them
and further informing the Court the filing and pendency
of an action to annul the auction sale (Civil Case No.
51203), which motion however, was
denied.chanrobles.com:cralaw:red
On February 25, 1985, a writ of preliminary injunction
was issued enjoining private respondents from
transferring to third parties the levied parcels of land
based on the finding that the auctioned lands are co-
owned by petitioners.
On March 1, 1985, private respondent Valente
Raymundo filed in Civil Case No. 51203 a Motion to
Dismiss for failure on the part of the petitioners to
prosecute, however, such motion was later denied by
Branch 155, Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No.
51203 an Ex-Parte Motion to Dismiss complaint for
failure to prosecute. This was granted by Branch 155
through an Order dated May 29, 1986, notwithstanding
petitioner’s pending motion for the issuance of alias
summons to be served upon the other defendants in the
said case. A motion for reconsideration was filed but was
later denied.
On October 10, 1984, RTC Branch 151 issued in Civil
Case Nos. 21736-21739 an Order directing Teofista
Suarez and all persons claiming right under her to
vacate the lots subject of the judicial sale; to desist from
surrender to private respondents the owner’s duplicate
copy of the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals
a petition for certiorari to annul the Orders of Branch 151
dated October 10, 1984 and October 14, 1986 issued in
Civil Case Nos. 21736-21739.
On December 4, 1986 petitioners filed with Branch 155 a
Motion for reconsideration of the Order 5 dated
September 24, 1986. In an Order dated June 10, 1987, 6
Branch 155 lifted its previous order of dismissal and
directed the issuance of alias summons.chanrobles law
library : red
Respondents then appealed to the Court of Appeals
seeking to annul the orders dated February 25, 1985, 7
May 19, 1989 8 and February 26, 1990 9 issued in Civil
Case No. 51203 and further ordering respondent Judge
to dismiss Civil Case No. 51203. The appellate court
rendered its decision on July 27, 1990, 10 the dispositive
portion of which reads:jgc:chanrobles.com.ph
"WHEREFORE, the petition for certiorari is hereby
granted and the questioned orders dated February 25,
1985, May 19, 1989 and February 26, 1990 issued in
Civil Case No. 51203 are hereby annulled, further
respondent Judge is ordered to dismiss Civil Case No.
51203." 11
Hence, this appeal.
Even without touching on the incidents and issues raised
by both petitioner and private respondents and the
developments subsequent to the filing of the complaint,
We cannot but notice the glaring error committed by the
trial court.

It would be useless to discuss the procedural issue on
the validity of the execution and the manner of publicly
selling en masse the subject properties for auction. To
start with, only one-half of the 5 parcels of land should
have been the subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law
applicable at the time of the institution of the case.
"The rights to the succession are transmitted from the
moment of the death of the decedent."cralaw virtua1aw
library
Article 888 further provides:chanrobles.com.ph : virtual
law library
"The legitime of the legitimate children and descendants
consists of one-half of the hereditary estate of the father
and of the mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided."cralaw
virtua1aw library
Article 892 par. 2 likewise
provides:jgc:chanrobles.com.ph
"If there are two or more legitimate children or
descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate
children or descendants."cralaw virtua1aw library
Thus, from the foregoing, the legitime of the surviving
spouse is equal to the legitime of each child.
The proprietary interest of petitioners in the levied and
auctioned property is different from and adverse to that
of their mother. Petitioners became co-owners of the
property not because of their mother but through their
own right as children of their deceased father. Therefore,
petitioners are not barred in any way from instituting the
action to annul the auction sale to protect their own
interest.
WHEREFORE, the decision of the Court of Appeals
dated July 27, 1990 as well as its Resolution of August
28, 1990 are hereby REVERSED and set aside; and
Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioners and to annul the
sale with regard to said portion.chanrobles law library
SO ORDERED.
TRANSMISSION OF SUCCESSIONAL RIGHTS
1. ) G.R. No. 165300 April 23, 2010
ATTY. PEDRO M. FERRER, Petitioner,
vs.
SPOUSES ALFREDO DIAZ and IMELDA DIAZ, REINA
COMANDANTE and SPOUSES BIENVENIDO
PANGAN and ELIZABETH PANGAN, Respondents.
DECISION
DEL CASTILLO, J.:
The basic questions to be resolved in this case are: Is a
waiver of hereditary rights in favor of another executed
by a future heir while the parents are still living valid? Is
an adverse claim annotated on the title of a property on
the basis of such waiver likewise valid and effective as to
bind the subsequent owners and hold them liable to the
claimant?
This Petition for Review on Certiorari1 under Rule 45 of
the Rules of Court assails the December 12, 2003
Decision2of the Court of Appeals (CA) in CA-G.R. CV
No. 70888.3 Said Decision modified the June 14, 2001
Summary Judgment4 of the Regional Trial Court (RTC)
of Quezon City in Civil Case No. Q-99-38876 by holding
respondents Spouses Bienvenido and Elizabeth Pangan
(the Pangans) not solidarily liable with the other
respondents, Spouses Alfredo and Imelda Diaz (the
Diazes) and Reina Comandante (Comandante), to
petitioner Atty. Pedro M. Ferrer (Atty. Ferrer). Likewise
assailed is the CA Resolution5 dated September 10,
2004 which denied petitioner’s as well as respondents
Spouses Diaz and Comandante’s respective motions for
reconsideration.
The parties’ respective versions of the factual
antecedents are as follows:
Version of the Petitioner
Petitioner Atty. Ferrer claimed in his original
Complaint6 that on May 7, 1999, the Diazes, as
represented by their daughter Comandante, through a
Special Power of Attorney (SPA), 7 obtained from him a
loan of ₱1,118,228.00. The loan was secured by a Real
Estate Mortgage Contract8 by way of second mortgage
over Transfer Certificate of Title (TCT) No. RT-6604 9 and
a Promissory Note10 payable within six months or up to
November 7, 1999. Comandante also issued to
petitioner postdated checks to secure payment of said
loan.
Petitioner further claimed that prior to this or on May 29,
1998, Comandante, for a valuable consideration of
₱600,000.00, which amount formed part of the
abovementioned secured loan, executed in his favor an
instrument entitled Waiver of Hereditary Rights and
Interests Over a Real Property (Still Undivided), 11 the
pertinent portions of which read:
I, REINA D. COMANDANTE, of legal age, Filipino,
married, with residence and postal address at No. 6,
Road 20, Project 8, Quezon City, Metro Manila,
Philippines, for a valuable consideration of SIX
HUNDRED THOUSAND PESOS (₱600,000.00) which
constitutes my legal obligation/loan to Pedro M. Ferrer,
likewise of legal age, Filipino, married to Erlinda B.
Ferrer, with residence and postal address at No. 9, Lot 4,
Puerto Rico Street, Loyola Grand Villas, Quezon City,
Metro Manila, Philippines, by virtue of these presents, do
hereby WAIVE, and/or REPUDIATE all my hereditary
rights and interests as a legitimate heir/daughter of Sps.
Alfredo T. Diaz and Imelda G. Diaz in favor of said Pedro
M. Ferrer, his heirs and assigns over a certain parcel of
land together with all the improvements found thereon
and which property is more particularly described as
follows:
TRANSFER CERTIFICATE OF TITLE
NO. RT-6604 (82020) PR-18887
xxxx
and which property is titled and registered in the name of
my parents Alfredo T. Diaz and Imelda G. Diaz, as
evidenced by Transfer Certificate of Title No. RT 6604
(82020) PR-18887.
(sgd.)
REINA D. COMANDANTE
Affiant
On the basis of said waiver, petitioner executed an
Affidavit of Adverse Claim12 which he caused to be
annotated at the back of TCT No. RT-6604 on May 26,
1999.
The Diazes, however, reneged on their obligation as the
checks issued by Comandante were dishonored upon
presentment. Despite repeated demands, said
respondents still failed and refused to settle the loan.
Thus, petitioner filed on September 29, 1999 a
Complaint13 for Collection of Sum of Money Secured by
Real Estate Mortgage Contract against the Diazes and
Comandante docketed as Civil Case No. Q-99-38876
and raffled to Branch 224 of RTC, Quezon City.
Petitioner twice amended his complaint. First, by
including as an alternative relief the Judicial Foreclosure
of Mortgage14 and, second, by impleading as additional
defendants the Pangans as the mortgaged property
covered by TCT No. RT-6604 was already transferred
under their names in TCT No. N-209049. Petitioner
prayed in his second amended complaint that all the
respondents be ordered to jointly and solidarily pay him
the sum of ₱1,118,228.00, exclusive of interests, and/or
for the judicial foreclosure of the property pursuant to the
Real Estate Mortgage Contract.
Version of the Respondents
In her Answer15 to petitioner’s original complaint,
Comandante alleged that petitioner and his wife were
her fellow members in the Couples for Christ Movement.
Sometime in 1998, she sought the help of petitioner with
regard to the mortgage with a bank of her parents’ lot
located at No. 6, Rd. 20, Project 8, Quezon City and
covered by TCT No. RT-6604. She also sought financial
accommodations from the couple on several occasions
which totaled ₱500,000.00. Comandante, however,
claimed that these loans were secured by chattel
mortgages over her taxi units in addition to several
postdated checks she issued in favor of petitioner.
As she could not practically comply with her obligation,
petitioner and his wife, presented to Comandante
sometime in May 1998 a document denominated as
Waiver of Hereditary Rights and Interests Over a Real
Property (Still Undivided) pertaining to a waiver of her
hereditary share over her parents’ abovementioned
property. Purportedly, the execution of said waiver was
to secure Comandante’s loan with the couple which at
that time had already ballooned to ₱600,000.00 due to
interests.
A year later, the couple again required Comandante to
sign the following documents: (1) a Real Estate
Mortgage Contract over her parents’ property; and, (2)
an undated Promissory Note, both corresponding to the
amount of ₱1,118,228.00, which petitioner claimed to be
the total amount of Comandante’s monetary obligation to
him exclusive of charges and interests. Comandante
alleged that she reminded petitioner that she was not the
registered owner of the subject property and that
although her parents granted her SPA, same only
pertains to her authority to mortgage the property to
banks and other financial institutions and not to
individuals. Petitioner nonetheless assured Comandante
that the SPA was also applicable to their transaction. As
Comandante was still hesitant, petitioner and his wife
threatened to foreclose the former’s taxi units and
present the postdated checks she issued to the bank for
payment. For fear of losing her taxi units which were the
only source of her livelihood, Comandante was thus
constrained to sign the mortgage agreement as well as
the promissory note. Petitioner, however, did not furnish
her with copies of said documents on the pretext that
they still have to be notarized, but, as can be gleaned
from the records, the documents were never notarized.
Moreover, Comandante claimed that the SPA alluded to
by petitioner in his complaint was not the same SPA
under which she thought she derived the authority to
execute the mortgage contract.
Comandante likewise alleged that on September 29,
1999 at 10:00 o‘ clock in the morning, she executed an
Affidavit of Repudiation/Revocation of Waiver of
Hereditary Rights and Interests Over A (Still Undivided)
Real Property,16 which she caused to be annotated on
the title of the subject property with the Registry of
Deeds of Quezon City on the same day. Interestingly,
petitioner filed his complaint later that day too.
By way of special and affirmative defenses, Comandante
asserted in her Answer to the amended complaint 17 that
said complaint states no cause of action against her
because the Real Estate Mortgage Contract and the
waiver referred to by petitioner in his complaint were not
duly, knowingly and validly executed by her; that the
Waiver of Hereditary Rights and Interests Over a Real
Property (Still Undivided) is a useless document as its
execution is prohibited by Article 1347 of the Civil
Code,18 hence, it cannot be the source of any right or
obligation in petitioner’s favor; that the Real Estate
Mortgage was of doubtful validity as she executed the
same without valid authority from her parents; and, that
the prayer for collection and/or judicial foreclosure was
irregular as petitioner cannot seek said remedies at the
same time.
Apart from executing the affidavit of repudiation,
Comandante also filed on October 4, 1999 a Petition for
Cancellation of Adverse Claim (P.E. 2468) Under The
Memorandum of Encumbrances of TCT No. RT-6604
(82020) PR-1888719 docketed as LRC Case No. Q-
12009 (99) and raffled to Branch 220 of RTC, Quezon
City. Petitioner who was impleaded as respondent
therein moved for the consolidation of said case 20 with
Civil Case No. Q-99-38876. On June 24, 2000, Branch
220 of RTC, Quezon City ordered the consolidation of
LRC Case No. Q-12009 (99) with Civil Case No. Q-99-
38876. Accordingly, the records of the former case was
forwarded to Branch 224.
For their part, the Diazes asserted that petitioner has no
cause of action against them. They claimed that they do
not even know petitioner and that they did not execute
any SPA in favor of Comandante authorizing her to
mortgage for the second time the subject property. They
also contested the due execution of the SPA as it was
neither authenticated before the Philippine Consulate in
the United States nor notarized before a notary public in
the State of New York where the Diazes have been
residing for 16 years. They claimed that they do not owe
petitioner anything. The Diazes also pointed out that the
complaint merely refers to Comandante’s personal
obligation to petitioner with which they had nothing to do.
They thus prayed that the complaint against them be
dismissed.21
At the Pangans’ end, they alleged that they acquired the
subject property by purchase in good faith and for a
consideration of ₱3,000,000.00 on November 11, 1999
from the Diazes through the latter’s daughter
Comandante who was clothed with SPA acknowledged
before the Consul of New York. The Pangans
immediately took actual possession of the property
without anyone complaining or protesting. Soon
thereafter, they were issued TCT No. N-209049 in lieu of
TCT No. RT-6604 which was cancelled. 22
However, on December 21, 1999, they were surprised
upon being informed by petitioner that the subject land
had been mortgaged to him by the Diazes. Upon inquiry
from Comandante, the latter readily admitted that she
has a personal loan with petitioner for which the
mortgage of the property in petitioner’s favor was
executed. She admitted, though, that her parents were
not aware of such mortgage and that they did not
authorize her to enter into such contract. Comandante
also informed the Pangans that the signatures of her
parents appearing on the SPA are fictitious and that it
was petitioner who prepared such document.
As affirmative defense, the Pangans asserted that the
annotation of petitioner’s adverse claim on TCT No. RT-
6604 cannot impair their rights as new owners of the
subject property. They claimed that the Waiver of
Hereditary Rights and Interests Over a Real Property
(Still Undivided) upon which petitioner’s adverse claim is
anchored cannot be the source of any right or interest
over the property considering that it is null and void
under paragraph 2 of Article 1347 of the Civil Code.
Moreover, the Pangans asserted that the Real Estate
Mortgage Contract cannot bind them nor in any way
impair their ownership of subject property because it was
not registered before the Register of Deeds.23
All the respondents interposed their respective
counterclaims and prayed for moral and exemplary
damages and attorney’s fees in varying amounts.
After the parties have submitted their respective pre-trial
briefs, the Diazes filed on March 29, 2001 a Motion for
Summary Judgment24 alleging that: first, since the
documents alluded to by petitioner in his complaint were
defective, he was not entitled to any legal right or relief;
and, second, it was clear from the pleadings that it is
Comandante who has an outstanding obligation with
petitioner which the latter never denied. With these, the
Diazes believed that there is no genuine issue as to any
material fact against them and, hence, they were entitled
to summary judgment.
On May 7, 2001, petitioner also filed a Motion for
Summary Judgment,25 claiming that his suit against the
respondents is meritorious and well-founded and that
same is documented and supported by law and
jurisprudence. He averred that his adverse claim
annotated at the back of TCT No. RT-6604, which was
carried over in TCT No. 209049 under the names of the
Pangans, is not merely anchored on the Waiver of
Hereditary Rights and Interests Over a Real Property
(Still Undivided) executed by Comandante, but also on
the Real Estate Mortgage likewise executed by her in
representation of her parents and in favor of petitioner.
Petitioner insisted that said adverse claim is not frivolous
and invalid and is registrable under Section 70 of
Presidential Decree (PD) No. 1529. In fact, the Registrar
of Deeds of Quezon City had already determined the
sufficiency and/or validity of such registration by
annotating said claim, and this, respondents failed to
question. Petitioner further averred that even before the
sale and transfer to the Pangans of the subject property,
the latter were already aware of the existence of his
adverse claim. In view of these, petitioner prayed that his
Motion for Summary Judgment be granted.
Ruling of the Regional Trial Court
After the filing of the parties’ respective Oppositions to
the said motions for summary judgment, the trial court, in
an Order dated May 31, 2001,26 deemed both motions
for summary judgment submitted for resolution. Quoting
substantially petitioner’s allegations in his Motion for
Summary Judgment, it thereafter rendered on June 14,
2001 a Summary Judgment27 in favor of petitioner, the
dispositive portion of which reads:
WHEREFORE, premises considered, summary
judgment is hereby rendered in favor of plaintiff and
against defendants by:
a) ORDERING all defendants jointly and
solidarily to pay plaintiff the sum of ONE
MILLION ONE HUNDRED EIGHTEEN
THOUSAND TWO HUNDRED TWENTY EIGHT
PESOS (₱1,118,228.00) which is blood money
of plaintiff;
b) ORDERING the Honorable Registrar of
Deeds of Quezon City that the rights and
interest of the plaintiff over subject property be
annotated at the back of T.C.T. No. N-209049;
c) SENTENCING all defendants to pay plaintiff’s
expenses of TEN THOUSAND PESOS
(₱10,000.00) and to pay the costs of suit.
IT IS SO ORDERED.28
The Pangans, the Diazes, and Comandante appealed to
the CA.29 The Pangans faulted the trial court in holding
them jointly and severally liable with the Diazes and
Comandante for the satisfaction of the latter’s personal
obligation to petitioner in the total amount of
₱1,118,228.00. The Diazes and Comandante, on the
other hand, imputed error upon the trial court in
rendering summary judgment in favor of petitioner. They
averred that assuming the summary judgment was
proper, the trial court should not have considered the
Real Estate Mortgage Contract and the Promissory Note
as they were defective, as well as petitioner’s frivolous
and non-registrable adverse claim.
In its Decision30 dated December 12, 2003, the CA
declared Comandante’s waiver of hereditary rights null
and void. However, it found the Real Estate Mortgage
executed by Comandante on behalf of her parents as
binding between the parties thereto.
As regards the Pangans, the CA ruled that the mortgage
contract was not binding upon them as they were
purchasers in good faith and for value. The property was
free from the mortgage encumbrance of petitioner when
they acquired it as they only came to know of the
adverse claim through petitioner’s phone call which
came right after the former’s acquisition of the property.
The CA further ruled that as Comandante’s waiver of
hereditary rights and interests upon which petitioner’s
adverse claim was based is a nullity, it could not be a
source of any right in his favor. Hence, the Pangans
were not bound to take notice of such claim and are thus
not liable to petitioner.
Noticeably, the appellate court did not rule on the
propriety of the issuance of the Summary Judgment as
raised by the Diazes and Comandante. In the ultimate,
the CA merely modified the assailed Summary Judgment
of the trial court by excluding the Pangans among those
solidarily liable to petitioner, in effect affirming in all other
respects the assailed summary judgment, viz:
WHEREFORE, foregoing premises considered, the
Decision of the Regional Trial Court of Quezon City,
Branch 224 in Civil Case No. Q-99-38876 is hereby
MODIFIED, as follows:
1. Ordering defendants-appellants Comandante
and Spouses Diaz to jointly and severally pay
plaintiff the sum of Php 1,118, 228.00; and
2. Ordering defendants-appellants Comandante
and Spouses Diaz to jointly and severally pay
plaintiff the amount of Php10,000.00 plus cost of
suit.
SO ORDERED.31
Petitioner’s Motion for Reconsideration32 having been
denied by the CA in its Resolution 33 dated September
10, 2004, he now comes to us through this petition for
review on certiorari insisting that the Pangans should,
together with the other respondents, be held solidarily
liable to him for the amount of ₱1,118,228.00.
Our Ruling
The petition lacks merit.
Petitioner merely reiterates his contentions in the Motion
for Summary Judgment he filed before the trial court. He
insists that his Adverse Claim annotated at the back of
TCT No. RT-6604 is not merely anchored on
Comandante’s Waiver of Hereditary Rights and Interests
Over A Real Property (Still Undivided) but also on her
being the attorney-in-fact of the Diazes when she
executed the mortgage contract in favor of petitioner. He
avers that his adverse claim is not frivolous or invalid
and is registrable as the Registrar of Deeds of Quezon
City even allowed its annotation. He also claims that
even prior to the sale of subject property to the Pangans,
the latter already knew of his valid and existing adverse
claim thereon and are, therefore, not purchasers in good
faith. Thus, petitioner maintains that the Pangans should
be held, together with the Diazes and Comandante,
jointly and severally liable to him in the total amount of
₱1,118,228.00.
Petitioner’s contentions are untenable.
The Affidavit of Adverse Claim executed by petitioner
reads in part:
xxxx
1. That I am the Recipient/Benefactor of
compulsory heir’s share over an undivided
certain parcel of land together with all the
improvements found therein x x x as evidenced
by Waiver of Hereditary Rights and Interests
Over A Real Property, executed by REINA D.
COMANDANTE (a compulsory/legitimate heir of
Sps. Alfredo T. Diaz and Imelda G. Diaz), x x x.
2. That in order to protect my interest over said
property as a Recipient/Benefactor, for the
registered owners/parents might dispose (of)
and/or encumber the same in a fraudulent
manner without my knowledge and consent, for
the owner’s duplicate title was not surrendered
to me, it is petitioned that this Affidavit of
Adverse Claim be ANNOTATED at the back of
the said title particularly on the original copy of
Transfer Certificate of Title No. RT-6604 (82020)
PR-18887 which is on file with the Register of
Deeds of Quezon City.
3. That I am executing this Affidavit in order to
attest (to) the truth of the foregoing facts and to
petition the Honorable Registrar of Deeds,
Quezon City, to annotate this Affidavit of Adverse
Claim at the back of the said title particularly the
original copy of Transfer Certificate of Title No.
RT-6604 (82020) PR-18887 which is on file with
the said office, so that my interest as
Recipient/Benefactor of the said property will be
protected especially the registered
owner/parents, in a fraudulent manner might
dispose (of) and/or encumber the same without
my knowledge and consent. (Emphasis ours)
Clearly, petitioner’s Affidavit of Adverse Claim was based
solely on the waiver of hereditary interest executed by
Comandante. This fact cannot be any clearer especially
so when the inscription of his adverse claim at the back
of TCT No. RT-6604 reads as follows:
P.E. 2468/T-(82020)RT-6604 - - AFFIDAVIT OF
ADVERSE CLAIM - - Executed under oath by PEDRO
M. FERRER, married to Erlinda B. Ferrer, claiming
among others that they have a claim, the interest
over said property as Recipient/Benefactor, by virtue
of a waiver of Hereditary Rights and Interest over a
real property x x x34(Emphasis ours)
Therefore, there is no basis for petitioner’s assertion that
the adverse claim was also anchored on the mortgage
contract allegedly executed by Comandante on behalf of
her parents.
The questions next to be resolved are: Is Comandante’s
waiver of hereditary rights valid? Is petitioner’s adverse
claim based on such waiver likewise valid and effective?
We note at the outset that the validity of petitioner’s
adverse claim should have been determined by the trial
court after the petition for cancellation of petitioner’s
adverse claim filed by Comandante was consolidated
with Civil Case No. Q-99-38876.35 This is in consonance
with Section 70 of PD 1529 which provides:
Section 70. Adverse Claim. – Whoever claims any part
or interest in registered land adverse to the registered
owner, arising subsequent to the date of the original
registration, may, if no other provision is made in this
Decree for registering the same, make a statement in
writing setting forth fully his alleged right or interest, and
how or under whom acquired, a reference to the number
of the certificate of title of the registered owner, the name
of the registered owner, and a description of the land in
which the right or interest is claimed.
The statement shall be signed and sworn to, and shall
state the adverse claimant’s residence, and a place at
which all notices may be served upon him. This
statement shall be entitled to registration as an adverse
claim on the certificate of title. The adverse claim shall
be effective for a period of thirty days from the date of
registration. After the lapse of said period, the annotation
of adverse claim may be cancelled upon filing of a
verified petition therefor by the party in
interest: Provided, however, That after cancellation, no
second adverse claim based on the same ground shall
be registered by the same claimant.
Before the lapse of thirty days aforesaid, any party in
interest may file a petition in the Court of First Instance
where the land is situated for the cancellation of the
adverse claim, and the court shall grant a speedy
hearing upon the question of validity of such adverse
claim, and shall render judgment as may be just and
equitable. If the adverse claim is adjudged to be invalid,
the registration thereof shall be ordered cancelled. If, in
any case, the court, after notice and hearing, shall find
that the adverse claim thus registered was frivolous, it
may fine the claimant in an amount not less than one
thousand pesos nor more than five thousand pesos, in
its discretion. Before the lapse of thirty days, the
claimant may withdraw his adverse claim by filing with
the Register of Deeds a sworn petition to that effect.
(Emphasis ours)
Pursuant to the third paragraph of the afore-quoted
provision, it has been held that the validity or
efficaciousness of an adverse claim may only be
determined by the Court upon petition by an interested
party, in which event, the Court shall order the
immediate hearing thereof and make the proper
adjudication as justice and equity may warrant. And, it is
only when such claim is found unmeritorious that the
registration of the adverse claim may be cancelled.36
As correctly pointed out by respondents, the records is
bereft of any showing that the trial court conducted any
hearing on the matter. Instead, what the trial court did
was to include this material issue among those for which
it has rendered its summary judgment as shown by the
following portion of the judgment:
x x x it will be NOTED that subject Adverse Claim
annotated at the back of Transfer Certificate of Title No.
RT-6604 (82020) PR-18887, and carried over to
defendants-Sps. Pangan’s Title No. N-20909, is not
merely anchored on defendant Reina Comandante’s
"Waiver of Hereditary Rights and Interest Over a Real
Property" but also on her being the Attorney-In-Fact of
the previous registered owners/parents/defendants Sps.
Alfredo and Imelda Diaz about the Real Estate Mortgage
Contract for a loan of ₱1,118,228.00 which is a blood
money of the plaintiff. Moreover, subject Adverse Claim
in LRC Case No. Q-12009 (99) is NOT frivolous and
invalid and consequently, REGISTRABLE by virtue of
Section 110 of the Land Registration Act (now Section
70 of Presidential Decree No. 1529). 37 (Emphasis ours)
It does not escape our attention that the trial court
merely echoed the claim of petitioner that his adverse
claim subject of LRC Case No. Q-12009 (99) is not
frivolous, invalid and is consequently registrable. We
likewise lament the apparent lack of effort on the part of
said court to make even a short ratiocination as to how it
came up with said conclusion. In fact, what followed the
above-quoted portion of the summary judgment are
mere recitals of the arguments raised by petitioner in his
motion for summary judgment. And in the dispositive
portion, the trial court merely casually ordered that
petitioner’s adverse claim be inscribed at the back of the
title of the Pangans. What is worse is that despite this
glaring defect, the CA manifestly overlooked the matter
even if respondents vigorously raised the same before it.
Be that as it may, respondents’ efforts of pointing out this
flaw, which we find significant, have not gone to naught
as will be hereinafter discussed.
All the respondents contend that the Waiver of
Hereditary Rights and Interest Over a Real Property (Still
Undivided) executed by Comandante is null and void for
being violative of Article 1347 of the Civil Code, hence,
petitioner’s adverse claim which was based upon such
waiver is likewise void and cannot confer upon the latter
any right or interest over the property.
We agree with the respondents.
Pursuant to the second paragraph of Article 1347 of the
Civil Code, no contract may be entered into upon a
future inheritance except in cases expressly authorized
by law. For the inheritance to be considered "future", the
succession must not have been opened at the time of
the contract. A contract may be classified as a contract
upon future inheritance, prohibited under the second
paragraph of Article 1347, where the following requisites
concur:
(1) That the succession has not yet been
opened.
(2) That the object of the contract forms part of
the inheritance; and,
(3) That the promissor has, with respect to the
object, an expectancy of a right which is purely
hereditary in nature.38
In this case, there is no question that at the time of
execution of Comandante’s Waiver of Hereditary Rights
and Interest Over a Real Property (Still Undivided),
succession to either of her parent’s properties has not
yet been opened since both of them are still living. With
respect to the other two requisites, both are likewise
present considering that the property subject matter of
Comandante’s waiver concededly forms part of the
properties that she expect to inherit from her parents
upon their death and, such expectancy of a right, as
shown by the facts, is undoubtedly purely hereditary in
nature.
From the foregoing, it is clear that Comandante and
petitioner entered into a contract involving the former’s
future inheritance as embodied in the Waiver of
Hereditary Rights and Interest Over a Real Property (Still
Undivided) executed by her in petitioner’s favor.
In Tañedo v. Court of Appeals,39 we invalidated the
contract of sale between Lazaro Tañedo and therein
private respondents since the subject matter thereof was
a "one hectare of whatever share the former shall have
over Lot 191 of the cadastral survey of Gerona, Province
of Tarlac and covered by Title T-13829 of the Register of
Deeds of Tarlac." It constitutes a part of Tañedo’s future
inheritance from his parents, which cannot be the source
of any right nor the creator of any obligation between the
parties.
Guided by the above discussions, we similarly declare in
this case that the Waiver of Hereditary Rights and
Interest Over a Real Property (Still Undivided) executed
by Comandante in favor of petitioner as not valid and
that same cannot be the source of any right or create
any obligation between them for being violative of the
second paragraph of Article 1347 of the Civil Code.
Anent the validity and effectivity of petitioner’s adverse
claim, it is provided in Section 70 of PD 1529, that it is
necessary that the claimant has a right or interest in the
registered land adverse to the registered owner and that
it must arise subsequent to registration. Here, as no right
or interest on the subject property flows from
Comandante’s invalid waiver of hereditary rights upon
petitioner, the latter is thus not entitled to the registration
of his adverse claim. Therefore, petitioner’s adverse
claim is without any basis and must consequently be
adjudged invalid and ineffective and perforce be
cancelled.
Albeit we have already resolved the issues raised by
petitioner, we shall not stop here as the Diazes and
Comandante in their Comment40 call our attention to the
failure of the CA to pass upon the issue of the propriety
of the issuance by the trial court of the Summary
Judgment in favor of petitioner despite the fact that they
have raised this issue before the appellate court. They
argue that summary judgment is proper only when there
is clearly no genuine issue as to any material fact in the
action. Thus, where the defendant presented defenses
tendering factual issue which call for presentation of
evidence, as when he specifically denies the material
allegations in the complaint, summary judgment cannot
be rendered.
The Diazes and Comandante then enumerate the
genuine issues in the case which they claim should have
precluded the trial court from issuing a summary
judgment in petitioner’s favor. First, the execution of the
SPA in favor of Comandante referred to by petitioner in
his complaint was never admitted by the Diazes. They
assert that as such fact is disputed, trial should have
been conducted to determine the truth of the matter,
same being a genuine issue. Despite this, the trial court
merely took the word of the plaintiff and assumed that
said document was indeed executed by them. Second,
although Comandante acknowledges that she has a
personal obligation with petitioner, she nevertheless, did
not admit that it was in the amount of ₱1,118,228.00.
Instead, she claims only the amount of ₱500,000.00 or
₱600,000.00 (if inclusive of interest) as her obligation.
Moreover, the Diazes deny borrowing any money from
petitioner and neither did the Pangans owe him a single
centavo. Thus, the true amount of the obligation due the
petitioner and how each of the respondents are
responsible for such amount are genuine issues which
need formal presentation of evidence. Lastly, they aver
that the trial court ignored factual and material issues
such as the lack of probative value of Comandante’s
waiver of hereditary rights as well as of the SPA; the fact
that Comandante signed the mortgage contract and
promissory note in her personal capacity; and, that all
such documents were prepared by petitioner who acted
as a lawyer and the creditor of Comandante at the same
time.
Rule 35 of the Rules of Court provides for summary
judgment, the pertinent provisions of which are the
following:
Section 1. Summary Judgment for claimant. A party
seeking to recover upon a claim, counterclaim, or cross-
claim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon all
or any part thereof.
Section 2. Summary Judgment for the defending party. A
party against whom a claim, counterclaim or cross-claim
is asserted or a declaratory relief is sought may, at any
time, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all
or any part thereof.
Section 3. Motion and proceedings thereon. The motion
shall be served at least ten (10) days before the time
specified for the hearing. The adverse party may serve
opposing affidavits, depositions, or admissions at least
three (3) days before the hearing. After the hearing, the
judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions and
admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law.
As can be deduced from the above provisions, summary
judgment is a procedural devise resorted to in order to
avoid long drawn out litigations and useless delays.
When the pleadings on file show that there are no
genuine issues of facts to be tried, the Rules of Court
allows a party to obtain immediate relief by way of
summary judgment. That is, when the facts are not in
dispute, the court is allowed to decide the case
summarily by applying the law to the material facts.
Conversely, where the pleadings tender a genuine issue,
summary judgment is not proper. A genuine issue is
such fact which requires the presentation of evidence as
distinguished from a sham, fictitious, contrived or false
claim.41
Here, we find the existence of genuine issues which
removes the case from the coverage of summary
judgment. The variance in the allegations of the parties
in their pleadings is evident.
Petitioner anchors his complaint for sum of money
and/or judicial foreclosure on the alleged real estate
mortgage over the subject property allegedly entered
into by Comandante in behalf of her parents to secure
payment of a loan amounting to ₱1,118,228.00. To
support this claim, petitioner attached to his complaint
(1) the SPA alleged to have been executed by the
Diazes; (2) the Real Estate Mortgage Contract pertaining
to the amount of ₱1,118,228.00; and, (3) a Promissory
Note.
Comandante, in her Answer to petitioner’s Amended 2. ) G.R. No. 179859 August 9, 2010
Complaint, assailed the validity and due execution of the
abovementioned documents. She asserted that the IN RE: PETITION FOR PROBATE OF LAST WILL AND
same were not duly, knowingly and validly executed by TESTAMENT OF BASILIO SANTIAGO,
her and that it was petitioner who prepared all of them.
Also, although she admitted owing petitioner, same was MA. PILAR SANTIAGO and CLEMENTE
not an absolute admission as she limited herself to an SANTIAGO, Petitioners,
obligation amounting only to ₱600,000.00 inclusive of vs.
charges and interests. She likewise claimed that such ZOILO S. SANTIAGO, FELICIDAD SANTIAGO-
obligation is her personal obligation and not of her RIVERA, HEIRS OF RICARDO SANTIAGO, HEIRS OF
parents. CIPRIANO SANTIAGO, HEIRS OF TOMAS
SANTIAGO, Respondents.
The Diazes, for their part, also denied that they executed FILEMON SOCO, LEONILA SOCO, ANANIAS SOCO,
the SPA authorizing their daughter to mortgage their URBANO SOCO, GERTRUDES SOCO AND HEIRS OF
property to petitioner as well as having any obligation to CONSOLACION SOCO, Oppositors.
the latter.
DECISION
Clearly, there are genuine issues in this case which
require the presentation of evidence. For one, it is CARPIO MORALES, J.:
necessary to ascertain in a full blown trial the validity and
due execution of the SPA, the Real Estate Mortgage and
the Promissory Notes because the determination of the Basilio Santiago (Basilio) contracted three marriages—
following equally significant questions depends on them, the first to Bibiana Lopez, the second to Irene Santiago,
to wit: (1) Are the Diazes obligated to petitioner or is the and the third to Cecilia Lomotan. Basilio and his first wife
obligation a purely personal obligation of Comandante? bore two offsprings, Irene and Marta, the mother of
and, (2) Is the sum of ₱1,118,228.00 as shown in the herein oppositors Felimon, Leonila, Consolacion,
Real Estate Mortgage and the Promissory Note, the Ananias, Urbano, and Gertrudes, all surnamed Soco.
amount which is really due the petitioner?
Basilio and his second wife had six offsprings, Tomas,
To stress, trial courts have limited authority to render Cipriano, Ricardo, respondents Zoilo and Felicidad, and
summary judgments and may do so only when there is petitioner Ma. Pilar, all surnamed Santiago.
clearly no genuine issue as to any material fact. When
the facts as pleaded by the parties are disputed or Basilio and his third wife bore three children, Eugenia
contested, proceedings for summary judgment cannot herein petitioner Clemente, and Cleotilde, all surnamed
take the place of trial.42 From the foregoing, it is apparent Santiago.1
that the trial court should have refrained from issuing the
summary judgment but instead proceeded to conduct a After Basilio died testate on September 16, 1973, his
full blown trial of the case. In view of this, the present daughter by the second marriage petitioner Ma. Pilar
case should be remanded to the trial court for further filed before the Regional Trial Court (RTC) of Bulacan 2 a
proceedings and proper disposition according to the petition for the probate of Basilio’s will, docketed as SP
rudiments of a regular trial on the merits and not through No. 1549-M. The will was admitted to probate by Branch
an abbreviated termination of the case by summary 10 of the RTC and Ma. Pilar was appointed executrix.
judgment.
The will contained the following provisions, among
WHEREFORE, the petition is DENIED. The assailed others:
Decision of the Court of Appeals dated December 12,
2003 insofar as it excluded the respondents Spouses 4. Ang mga ari-arian ko na nasasaysay sa itaas ay
Bienvenido Pangan and Elizabeth Pangan from among INIWAN, IPINAGKAKALOOB, IBINIBIGAY, at
those solidarily liable to petitioner Atty. Pedro M. Ferrer, IPINAMAMANA ko sa aking mga nasabing
is AFFIRMED. The inscription of the adverse claim of tagapagmana sa ilalim ng gaya ng sumusunod:
petitioner Atty. Pedro M. Ferrer on T.C.T. No. N-209049
is hereby ordered CANCELLED. Insofar as its other
xxxx
aspects are concerned, the assailed Decision is SET
ASIDE and VACATED. The case is REMANDED to the
Regional Trial Court of Quezon City, Branch 224 for c) ang aking anak na si Ma. Pilar ang
further proceedings in accordance with this Decision. magpapalakad at mamamahala ng balutan na
nasa Santiago, Malolos, Bulacan, na
nasasaysay sa itaas na 2(y);
SO ORDERED

d) Sa pamamahala ng bigasan, pagawaan ng

pagkain ng hayop at lupa’t bahay sa Maynila,
 ang lahat ng solar sa danay ng daang Malolos-
Paombong na nasa Malolos, Bulacan, kasali at
kasama ang palaisdaan na nasa likuran niyon,
ay ililipat sa pangalan nila Ma. Pilar at Clemente;
nguni’t ang kita ng palaisdaan ay siyang
gagamitin nila sa lahat at anomang kailangang
gugol, maging majora o roperacion [sic], sa
lupa’t bahay sa Lunsod ng Maynila na
nasasaysay sa itaas na 2(c);
e) Ang lupa’t bahay sa Lunsod ng Maynila na
nasasaysay sa itaas na 2(c) ay ililipat at ilalagay
sa pangalan nila Ma. Pilar at Clemente hindi
bilang pamana ko sa kanila kundi upang
pamahalaan at pangalagaan lamang nila at
nang ang sinoman sa aking mga anak sampu ng
apo at kaapuapuhan ko sa habang panahon ay
may tutuluyan kung magnanais na mag-aral sa
Maynila o kalapit na mga lunsod x x x.
f) Ang bigasan, mga makina at pagawaan ng
pagkain ng hayop ay ipinamamana ko sa aking
asawa, Cecilia Lomotan, at mga anak na Zoilo,
Ma. Pilar, Ricardo, Cipriano, Felicidad, Eugenia,
Clemente, at Cleotilde nang pare-
pareho. Ngunit, sa loob ng dalawampong (20)
taon mula sa araw ng aking kamatayan, hindi
nila papartihin ito at pamamahalaan ito ni
Clemente at ang maghahawak ng salaping
kikitain ay si Ma. Pilar na siyang
magpaparte. Ang papartihin lamang ay ang kita
ng mga iyon matapos na ang gugol na
kakailanganin niyon, bilang reparacion,
pagpapalit o pagpapalaki ay maawas na. Ninais
ko ang ganito sa aking pagmamahal sa kanila at
pagaaring ibinubuhay ko sa kanila lahat, bukod
sa yaon ay sa kanila ding kapakinabangan at
kabutihan.
g) Ang lahat ng lupa, liban sa lupa’t bahay sa
Lunsod ng Maynila, ay ipinapamana ko sa aking
nasabing asawa, Cecilia Lomotan, at mga anak
na Tomas, Zoilo, Ma. Pilar, Ricardo, Cipriano,
Felicidad, Eugenia, Clemente at Cleotilde nang
pare-pareho. Datapwa’t, gaya din ng mga
bigasan, makina at gawaan ng pagkain ng
hayop, ito ay hindi papartihin sa loob ng
dalawampong (20) taon mula sa aking
pagpanaw, at pamamahalaan din nila Ma. Pilar
at Clemente. Ang mapaparte lamang ay ang kita
o ani ng nasabing mga pag-aari matapos
bayaran ang buwis at/o patubig at iba pang mga
gugol na kailangan. Si Ma. Pilar din ang
hahawak ng ani o salaping manggagaling dito.
(emphasis and underscoring supplied)3
The oppositors-children of Marta, a daughter of Basilio
and his first wife, were, on their motion, allowed to
intervene.4
After the executrix-petitioner Ma. Pilar filed a "Final
Accounting, Partition and Distribution in Accordance with
the Will,"5 the probate court approved the will by Order of
August 14, 1978 and directed the registers of deeds of
Bulacan and Manila to register the certificates of title
indicated therein.6 Accordingly, the titles to Lot Nos. 786,
837, 7922, 836 and 838 in Malolos, Bulacan and Lot No.
8-C in Manila were transferred in the name of petitioners
Ma. Pilar and Clemente.7
The oppositors thereafter filed a Complaint-in-
Intervention8 with the probate court, alleging that
Basilio’s second wife was not Irene but a certain Maria
Arellano with whom he had no child; and that Basilio’s
will violates Articles 979-981 of the Civil Code.9
The probate court dismissed the Complaint-in-
Intervention, citing its previous approval of the "Final
Accounting, Partition, and Distribution in Accordance
with the Will."10
The oppositors-heirs of the first marriage thereupon filed
a complaint for completion of legitime before the Bulacan
RTC, docketed as Civil Case No. 562-M-90,11 against the
heirs of the second and third marriages.
In their complaint, oppositors-heirs of the first marriage
essentially maintained that they were partially preterited
by Basilio’s will because their legitime was
reduced.12 They thus prayed, inter alia, that an inventory
and appraisal of all the properties of Basilio be
conducted and that Ma. Pilar and Clemente be required
to submit a fresh accounting of all the incomes of the
properties from the time of Basilio’s death up to the time
of the filing of Civil Case No. 562-M-90.13
RTC-Branch 17 decided Civil Case No. 562-M-90 (for
completion of legitime) in favor of the oppositors-heirs of
the first marriage.
On appeal (docketed as CA G.R. No. 45801), the Court
of Appeals, by Decision of January 25, 2002, 14 annulled
the decision of RTC-Branch 17, holding that the RTC
Branch 17 dismissal of the Complaint-in-Intervention in
SP No. 1549-M and its August 14, 1978 Order approving
the probate of the will constitute res judicata with respect
to Civil Case No. 562-M-90.15 Thus the appellate court
disposed:
WHEREFORE, premises considered, the Appeal is
hereby GRANTED. The Decision in Civil Case No. 562-
M-90 is hereby ANNULLED on the ground of res
judicata. Let the Decree of Distribution of the Estate of
Basilio Santiago remain UNDISTURBED.
SO ORDERED.16 (emphasis in the original; underscoring
supplied)
Oppositors-heirs of the first marriage challenged the
appellate court’s decision in CA G.R. No. 45801 by
petition for review, docketed as G.R. No. 155606, which
this Court denied.17 The denial became final and
executory on April 9, 2003.18
In the interregnum, or on October 17, 2000, respondent-
heirs of the second marriage filed before the probate
court (RTC-Branch 10) a Motion for Termination of
Administration, for Accounting, and for Transfer of Titles
in the Names of the Legatees.19 Citing the earlier quoted
portions of Basilio’s will, they alleged that:
x x x x the twenty (20) year period within which subject
properties should be under administration of [Ma.] Pilar
Santiago and Clemente Santiago expired on September
16, 1993.
Consequently, [Ma.] Pilar Santiago and Clemente
Santiago should have ceased as such administrator[s]
way back on September 16, 1993 and they should have
transferred the above said titles to the named legatees in
the Last Will and Testament of the testator by then. Said
named legatees in the Last Will and Testament are
no[ne] other than the following:
xxxx
Said [Ma.] Pilar Santiago and Clemente Santiago should
have also rendered an accounting of their administration
from such death of the testator up to the present or until
transfer of said properties and its administration to the
said legatees.
x x x x20
Respondents prayed that petitioners be ordered:
1) To surrender the above-enumerated titles
presently in their names to [the] Honorable Court
and to transfer the same in the names of the
designated legatees in the Last Will and
Testament, to wit:
1) asawa, Cecilia Lomotan, at mga anak
na
2) Tomas
3) Zoilo
4) Ma. Pilar
5) Ricardo
6) Cipriano
7) Felicidad
8) Eugenia
9) Clemente at
10) Cleotilde
(all surnamed SANTIAGO)
2) To peacefully surrender possession and
administration of subject properties, including
any and all improvements thereon, to said
legatees.
3) To render an accounting of their
administration of said properties and other
properties of the testator under their
administration, from death of testator Basilio
Santiago on September 16, 1973 up to the
present and until possession and administration
thereof is transferred to said legatees.21
Opposing the motion, petitioners argued that with the
approval of the Final Accounting, Partition and
Distribution in Accordance with the Will, and with the
subsequent issuance of certificates of title covering the
properties involved, the case had long since been closed
and terminated.22
The probate court, finding that the properties in question
would be transferred to petitioners Ma. Pilar and
Clemente for purposes of administration only, granted
the motion, by Order of September 5, 2003, 23 disposing
as follows:
WHEREFORE, premises considered, the Motion for
Termination of Administration, for Accounting, and for
Transfer of Titles in the Names of the Legatees dated
October 3, 2000 filed by some heirs of the testator
Basilio Santiago xxx is hereby GRANTED. Accordingly,
the administratrix [sic] Ma. Pilar Santiago and Mr.
Clemente Santiago are hereby DIRECTED, as follows:
a.) To surrender the above-enumerated titles
presently in their names to this Honorable Court
and to transfer the same in the names of the
designated legatees in the Last Will and
Testament, to wit: 1.) asawa, Cecilia Lomotan at
mga anak na 2.) Tomas 3). Zoilo 4.) Ma. Pilar 5.)
Ricardo 6.) Cipriano 7.) Felicidad 8.) Eugenia 9.)
Clemente and 10.) Cleotilde all named
SANTIAGO.
b.) To peacefully surrender possession and
administration of subject properties including
any and all improvements thereon, to said
legatees; and
c.) To render an accounting of their
administration of subject properties, including
any and all improvements thereon, to said
legatees; and
d.) To submit an accounting of their
administration of the above-mentioned estate of
the testator or all the above said lots including
the rice mill, animal feeds factory, and all
improvements thereon from August 14, 1978 up
to the present.
 e.) To submit a proposed Project of Partition,
indicating how the parties may actually partition
or adjudicate all the above said properties
including the properties already in the name of
all the said legatees xxx.
x x x x.
Further, the Register of Deeds of Bulacan are hereby
DIRECTED to cancel and consider as no force and
effects Transfer Certificates of Title Nos. T-249177 (RT-
46294) [Lot No. 786], T-249175 (RT-46295) [Lot No.
837], T-249174 (RT-46296) [Lot No. 7922], T-249173
(RT-46297) [Lot No. 836], and T-249176 (RT-46293) [Lot
No. 838] in the names of Ma. Pilar Santiago and
Clemente Santiago and to issue new ones in the lieu
thereof in the names of Cecilia Lomotan-Santiago,
Tomas Santiago, Zoilo Santiago, Ma. Pilar Santiago,
Ricardo Santiago, Cipriano Santiago, Felicidad
Santiago, Eugenia Santiago, Clemente Santiago, and
Cleotilde Santiago.
Moreover, the Register of Deeds of Manila is hereby
DIRECTED to cancel and consider as no force and
effect Transfer Certificate of Title No. 131044 [Lot No. 8-
C] in the names of Ma. Pilar Santiago and Clemente
Santiago and to issue new ones in lieu thereof in the
names of the Heirs of Bibiana Lopez, the Heirs of Irene
Santiago, and the Heirs of Cecilia Lomotan.
The Motion to Suspend Proceedings filed by Filemon,
Leonila, Ma. Concepcion, Ananias, Urbano and
Gertrudes, all surnamed Soco, dated December 3, 2002,
is hereby DENIED for lack of merit.24
Respecting petitioners’ argument that the case had long
been closed and terminated, the trial court held:
x x x x [I]t is clear from the Last Will and Testament that
subject properties cannot actually be partitioned until
after 20 years from the death of the testator Basilio
Santiago x x x x. It is, therefore, clear that something
more has to be done after the approval of said Final
Accounting, Partition, and Distribution. The testator
Basilio Santiago died on September 16, 1973, hence,
the present action can only be filed after September 16,
1993. Movant’s cause of action accrues only from the
said date and for which no prescription of action has set
in.
The principle of res judicata does not apply in the
present probate proceeding which is continuing in
character, and terminates only after and until the final
distribution or settlement of the whole estate of the
deceased in accordance with the provision of the will of
the testator. The Order dated August 14, 1978 refers
only to the accounting, partition, and distribution of the
estate of the deceased for the period covering from the
date of the filing of the petition for probate on December
27, 1973 up to August 14, 1978. And in the said August
14, 1978 order it does not terminate the appointment of
petitioner[s] Ma. Pilar Santiago and Clemente Santiago
as executrix and administrator, respectively, of the estate
of the deceased particularly of those properties which
were prohibited by the testator to be partitioned within 20
years from his death. Since then up to the present, Ma.
Pilar Santiago and Clemente Santiago remain the
executor and administrator of the estate of the deceased
and as such, they are required by law to render an
accounting thereof from August 14, 1978 up to the
present; there is also now a need to partition and
distribute the aforesaid properties as the prohibition
period to do so has elapsed. (emphasis and
underscoring supplied)25
Petitioners, together with the oppositors, filed a motion
for reconsideration,26 which the probate court denied,
drawing them to appeal to the Court of Appeals which
docketed it as CA G.R. No. 83094.
The Court of Appeals affirmed the decision of the
probate court,27 hence, the petition28 which raises the
following grounds:
I.
"CAN THE HONORABLE COURT OF APPEALS
REVERSE ITSELF"
A. THE COURT OF APPEALS ERRED IN NOT
BINDING ITSELF WITH ITS PREVIOUS
DECISION INVOLVING THE SAME PARTIES
AND SAME PROPERTIES;
B. THE COURT OF APPEALS ERRED IN
AFFIRMING THE RTC AS IT AGREED WITH
THE RTC THAT THIS CASE IS NOT BARRED
BY RES JUDICATA;
C. IN C.A.-G.R. NO. 45801, THE HONORABLE
COURT OF APPEALS HELD THAT THERE
WAS RES JUDICATA; IN C.A.-G.R. CV NO.
83094, THERE WAS NO RES JUDICATA.
II.
"GRANTING THAT THE COURT OF APPEALS HAS
ALL THE COMPETENCE AND JURISDICTION TO
REVERSE ITSELF, STILL THE COURT OF APPEALS
ERRED IN AFFIRMING THE RTC’S ORDER TO
TRANSFER THE MANILA PROPERTY COVERED BY
TCT NO. 131004 TO THE NAMES OF CECILIA
LOMOTAN, TOMAS, ZOILO, MA. PILAR, RICARDO,
CIPRIANO FELICIDAD, EUGENIA, CLEMENTE AND
CLEOTILDE, ALL SURNAMED
SANTIAGO."29 (emphasis in the original)
The petition lacks merit.
Petitioners’ argument that the decision of the appellate
court in the earlier CA-G.R. NO. 45801 (upheld by this
Court in G.R. No. 155606) constitutes res judicata to the
subsequent CA G.R. No. 83094 (the subject of the
present petition for review) fails.
Res judicata has two aspects, which are embodied in
Sections 47 (b) and 47 (c) of Rule 39 of the Rules of
Civil Procedure.30 The first, known as "bar by prior
judgment," proscribes the prosecution of a second action
upon the same claim, demand or cause of action already
settled in a prior action.31 The second, known as
"conclusiveness of judgment," ordains that issues
actually and directly resolved in a former suit cannot
again be raised in any future case between the same
parties involving a different cause of action.32
Both aspects of res judicata, however, do not find
application in the present case. The final judgment
regarding oppositors’ complaint on the reduction of their
legitime in CA-G.R. NO. 45801 does not dent the
present petition, which solely tackles the propriety of the
termination of administration, accounting and transfer of
titles in the names of the legatees-heirs of the second
and third marriages. There is clearly no similarity of
claim, demand or cause of action between the present
petition and G.R. No. 155606.
While as between the two cases there is identity of
parties, "conclusiveness of judgment" cannot likewise be
invoked. Again, the judgment in G.R. No. 155606 would
only serve as an estoppel as regards the issue on
oppositors’ supposed preterition and reduction of
legitime, which issue is not even a subject, or at the very
least even invoked, in the present petition.
What is clear is that petitioners can invoke res judicata
insofar as the judgment in G.R. No. 155606 is concerned
against the oppositors only. The records reveal,
however, that the oppositors did not appeal the decision
of the appellate court in this case and were only
impleaded pro forma parties.
Apparently, petitioners emphasize on the directive of the
appellate court in CA G.R. No. 45801 that the decree of
distribution of the estate of Basilio should remain
undisturbed. But this directive goes only so far as to
prohibit the interference of the oppositors in the
distribution of Basilio’s estate and does not pertain to
respondents’ supervening right to demand the
termination of administration, accounting and transfer of
titles in their names.
Thus, the Order of September 5, 2003 by the probate
court granting respondents’ Motion for Termination of
Administration, for Accounting, and for Transfer of Titles
in the Names of the Legatees is a proper and necessary
continuation of the August 14, 1978 Order that approved
the accounting, partition and distribution of Basilio’s
estate. As did the appellate court, the Court notes that
the August 14, 1978 Order was yet to become final
pending the whole settlement of the estate. And final
settlement of the estate, in this case, would culminate
after 20 years or on September 16, 1993, when the
prohibition to partition the properties of the decedent
would be lifted.
Finally, petitioners object to the inclusion of the house
and lot in Manila, covered by TCT No. 131044, among
those to be transferred to the legatees-heirs as it would
contravene the testator’s intent that no one is to own the
same.1avvphi1
The Court is not persuaded. It is clear from Basilio’s will
that he intended the house and lot in Manila to be
transferred in petitioners’ names for administration
purposes only, and that the property be owned by the
heirs in common, thus:
e) Ang lupa’t bahay sa Lunsod ng Maynila na
nasasaysay sa itaas na 2(c) ay ililipat at ilalagay
sa pangalan nila Ma. Pilar at Clemente hindi
bilang pamana ko sa kanila kundi upang
pamahalaan at pangalagaan lamang nila at
nang ang sinoman sa aking mga anak sampu ng
apo at kaapuapuhan ko sa habang panahon ay
may tutuluyan kung magnanais na mag-aral sa
Maynila o kalapit na mga lunsod sa medaling
salita, ang bahay at lupang ito’y walang
magmamay-ari bagkus ay gagamitin habang
panahon ng sinomang magnanais sa aking
kaapuapuhan na tumuklas ng karunungan sa
paaralan sa Maynila at katabing mga lunsod x x
x x33(emphasis and underscoring supplied)
But the condition set by the decedent on the property’s
indivisibility is subject to a statutory limitation. On this
point, the Court agrees with the ruling of the appellate
court, viz:
For this Court to sustain without qualification,
[petitioners]’s contention, is to go against the provisions
of law, particularly Articles 494, 870, and 1083 of the
Civil Code, which provide that the prohibition to divide a
property in a co-ownership can only last for twenty (20)
years x x x x
x x x x Although the Civil Code is silent as to the effect of
the indivision of a property for more than twenty years, it
would be contrary to public policy to sanction co-
ownership beyond the period expressly mandated by the
Civil Code x x x x34
WHEREFORE, the petition is DENIED.
Costs against petitioners.
SO ORDERED.