QUASHA ANCHETA PEÑA v. LCN
Quasha
CONSTRUCTION CORPORATION
G.R No. 174873, August 26, 2008
PETITIONER: Quasha Ancheta Peña and Nolasco Law
Office for its own behalf and representing the heirs of
Raymond Triviere
RESPONDENT: LCN Construction Corporation
SUMMARY: Atty. Syquia and Quasha were appointed
administrators of the estate of the deceased Raymond
Triviere. They dutifuly discharged their obligations but
have not been paid for services they rendered for over a
decade. They filed a Motion for Payment in the trial court
which the latter granted. LCN, as the only remaning
claimant of the estate, opposed the same and on appeal to
the appellate court, the former’s petition was given partial
merit in that the awards given to the heirs and
administrators were deleted. The SC held that the award
in favor of the heirs is already a distribution of the estate.
However, it awarded attorney’s fees to petitioner to be
sourced from the shares of the Triviere children upon final
distribution of the estate.
DOCTRINE: Section 2, Rule 82 provides in clear and
unequivocal terms the modes for replacing an
administrator of an estate upon the death of an
administrator: Court may remove or accept resignation of
executor or administrator. Proceedings upon death,
resignation, or removal. x x x. When an executor or
administrator dies, resigns, or is removed the remaining
executor or administrator may administer the trust alone,
unless the court grants letters to someone to act with him.
If there is no remaining executor or administrator,
administration may be granted to any suitable person.
FACTS:
1. Raymond Triviere passed away on 14 December
1987. On January 1988, proceedings for the settlement of
his intestate estate were instituted by his widow, Amy
Triviere, before the Makati RTC. Atty. Enrique Syquia
and Atty. William Quasha of the Quasha Law Office,
representing the widow and children of the late Raymond
Triviere, respectively were appointed administrators of
the estate of the deceased. As administrators, Atty. Syquia
and Atty. Quasha incurred expenses for the payment of
real estate taxes, security services, and the preservation
and administration of the estate, as well as litigation
expenses.
2. In February 1995, Atty. Syquia and Atty.
filed before the RTC a Motion for Payment of their
litigation expenses. Citing their failure to submit an
accounting of the assets and liabilities of the estate under
administration, the RTC denied the Motion for Payment
of Atty. Syquia and Atty. Quasha. In 1996, Atty. Quasha
also passed away. Atty. Redentor Zapata (Zapata), also of
the Quasha Law Office, took over as the counsel of the
Triviere children, and continued to help Atty. Syquia in
the settlement of the estate. On 6 September 2002, Atty.
Syquia and Atty. Zapata filed another Motion for
Payment, for their own behalf and for their respective
clients presenting certain allegations the most important
of which is that there has been no payment of money from
the estate for more than 10 years already. As a
consequence, they moved that the amount of P1M be
taken from the estate funds to be divided among the
parties (P450k as share of the children, P200k as
attorney’s fees, P150k as share of the widow, and P200k
for the administrator).
3. LCN opposed the motion stating that the RTC
had already resolved the issue of payment of litigation
expenses when it denied the first Motion for Payment
filed by Atty. Syquia and Atty. Quasha for
4. The appellate court modified the Order of the
RTC by deleting the awards of P450k and P150k in favor
of the children and widow of the deceased respectively.
The appellate court adopted the position of LCN that the
claim of LCN was an obligation of the estate which was
yet unpaid and, under Section 1, Rule 90, barred the
distribution of the residue of the estate. Petitioners,
though, insist that the awards in favor of the petitioner
children and widow of the late Raymond Triviere is not a
distribution of the residue of the estate, thus, rendering
Section 1, Rule 90 inapplicable.
ISSUES:
1. WoN the CA erred in ruling that the award in
favor of the heirs is already a distribution of the residue
of the estate — NO
2. WoN the CA erred in nullifying the award of
attorney’s fees in favor of the co-administrators – YES
RULING: Petition PARTLY GRANTED.
RATIO:
1. Although it is within the discretion of the RTC
whether or not to permit the advance distribution of the
estate, its exercise of such discretion should be qualified
1
by the following: [1] only part of the estate that is not
affected by any pending controversy or appeal may be the
subject of advance distribution (Section 2, Rule 109); and
[2] the distributees must post a bond, fixed by the court,
conditioned for the payment of outstanding obligations of
the estate (second paragraph of Section 1, Rule 90). There
is no showing that the RTC, in awarding to the petitioner
children and widow their shares in the estate prior to the
settlement of all its obligations, complied with these two
requirements or, at the very least, took the same into
consideration. Its Order of 12 June 2003 is completely
silent on these matters. It justified its grant of the award
in a single sentence which stated that petitioner children
and widow had not yet received their respective shares
from the estate after all these years. Taking into account
that the claim of LCN against the estate of the late
Raymond Triviere allegedly amounted to P6,016,570.65,
already in excess of the P4,738,558.63 reported total
value of the estate, the RTC should have been more
prudent in approving the advance distribution of the same.
2. Petitioners earlier invoked Dael v. Intermediate
Appellate Court where the Court sustained an Order
granting partial distribution of an estate. However, Dael
is not even on all fours with the case at bar. No similar
determination on sufficiency of assets or absence of any
outstanding obligations of the estate of the late Raymond
Triviere was made by the RTC in this case. In fact, there
is a pending claim by LCN against the estate, and the
amount thereof exceeds the value of the entire estate.
Furthermore, in Dael, the Court actually cautioned that
partial distribution of the decedent's estate pending final
termination of the testate or intestate proceeding should
as much as possible be discouraged by the courts, and,
except in extreme cases, such form of advances of
inheritance should not be countenanced. The reason for
this rule is that courts should guard with utmost zeal and
jealousy the estate of the decedent to the end that the
creditors thereof be adequately protected and all the
rightful heirs be assured of their shares in the inheritance.
3. Petitioner Quasha Law Office asserts that it is not
within the purview of Section 7, Rule 85 since it is not an
appointed administrator of the estate. When Atty. Quasha
passed away in 1996, Atty. Syquia was left as the sole
administrator of the estate of the late Raymond Triviere.
The person of Atty. Quasha was distinct from that of
petitioner Quasha Law Office; and the appointment of
Atty. Quasha as administrator of the estate did not extend
to his law office. Neither could petitioner Quasha Law
Office be deemed to have substituted Atty. Quasha as
administrator upon the latter's death for the same would
be in violation of the rules on the appointment and
substitution of estate administrators, particularly, Section
2, Rule 82. Hence, when Atty. Quasha died, petitioner
Quasha Law Office merely helped in the settlement of the
estate as counsel for the petitioner children of the late
Raymond Triviere.
4. The Court notes with disfavor the sudden change
in the theory by petitioner Quasha Law Office. Consistent
with discussions in the preceding paragraphs, Quasha
Law Office initially asserted itself as co-administrator of
the estate before the courts. The records do not belie this
fact. Petitioner Quasha Law Office later on denied it was
substituted in the place of Atty. Quasha as administrator
of the estate only upon filing a Motion for
Reconsideration with the Court of Appeals, and then
again before this Court. As a general rule, a party cannot
change his theory of the case or his cause of action on
appeal. This rule, however, admits of certain exceptions.
In the interest of justice and within the sound discretion
of the appellate court, a party may change his legal theory
on appeal, only when the factual bases thereof would not
require presentation of any further evidence by the
adverse party in order to enable it to properly meet the
issue raised in the new theory.
5. On the foregoing considerations, this Court finds
it necessary to exercise leniency on the rule against
changing of theory on appeal, consistent with the rules of
fair play and in the interest of justice. Petitioner Quasha
Law Office presented conflicting arguments with respect
to whether or not it was co-administrator of the estate.
Nothing in the records, however, reveals that any one of
the lawyers of Quasha Law Office was indeed a substitute
administrator for Atty. Quasha upon his death.
6. The court has jurisdiction to appoint an
administrator of an estate by granting letters of
administration to a person not otherwise disqualified or
incompetent to serve as such, following the procedure laid
down in Section 6, Rule 78. Corollary thereto, Section 2,
Rule 82 provides in clear and unequivocal terms the
modes for replacing an administrator of an estate upon the
death of an administrator. The records of the case are
wanting in evidence that Quasha Law Office or any of its
lawyers substituted Atty. Quasha as co-administrator of
the estate. None of the documents attached pertain to the
issuance of letters of administration to petitioner Quasha
Law Office or any of its lawyers at any time after the
demise of Atty. Quasha in 1996. This Court is thus
inclined to give credence to petitioner's contention that
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while it rendered legal services for the settlement of the
estate of Raymond Triviere since the time of Atty.
Quasha's death in 1996, it did not serve as co-
administrator thereof, granting that it was never even
issued letters of administration. However, while petitioner
Quasha Law Office, serving as counsel of the Triviere
children from the time of death of Atty. Quasha in 1996,
is entitled to attorney's fees and litigation expenses of
P100,000.00 as prayed for in the Motion for Payment
dated 3 September 2002, and as awarded by the RTC in
its 12 June 2003 Order, the same may be collected from
the shares of the Triviere children, upon final distribution
of the estate, in consideration of the fact that the Quasha
Law Office, indeed, served as counsel (not anymore as
co-administrator), representing and performing legal
services for the Triviere children in the settlement of the
estate of their deceased father.

3
255 Phil. 420
VDA DE ALBERTO VS CA
BIDIN, J.:
This is a petition for review on certiorari of the August 31,
1968 Decision of the Court of Appeals in CA-G.R. No.
34750-R* entitled "Antonio J. Alberto, Jr., thru his
mother as his natural guardian, Andrea Jongco, plaintiff-
appellant, vs. Natividad del Rosario Vda. de Alberto, in
her individual capacity and as judicial guardian of the
minors, Lourdes Alberto and Antonio Alberto, Jr.,
defendants-appellees", reversing the August 10, 1964
Decision** of the then Court of First Instance of Manila.
The case originated from a complaint for
acknowledgment and partition filed on September 8, 1960
with the then Court of First Instance of Manila by the
herein private respondent, a minor, 18 years of age,
assisted by his mother, Andrea Jongco, as his natural
guardian, against the herein petitioners (Record on
Appeal, pp. 2-8). In the said Complaint, private
respondent alleged, in substance, that in 1941 his alleged
father, Antonio C. Alberto, and his mother, Andrea
Jongco, lived together as husband and wife and as a result
of which, he was born on September 10, 1942; that during
the time that his alleged father and mother lived together
as husband and wife and up to the time of his birth, both
were single and had no legal impediment to marry each
other; that after his birth, his father and mother continued
living together as husband and wife, his father supporting
them and introducing him to the public as his natural
child; that even the family of his father recognized him as
such; that on or about the year 1944, his father and mother
separated, and subsequently, his father married herein
petitioner Natividad del Rosario; that as a result of the
marriage, two (2) children were born - herein petitioners
Lourdes Alberto and Antonio Alberto, Jr.; that although
his father was separated from his mother, he continued to
support him and recognized him as his own child; that on
July 3, 1949, his father died, and without notice to him,
petitioner Natividad del Rosario Vda. de Alberto, on July
17, 1949, instituted before the then Court of First Instance
of Manila an intestate proceedings for the estate of his
deceased father, docketed therein as Special Proceedings
No. 9092; that in the said intestate proceedings,
petitioners deliberately omitted him as one of the heirs
and for this reason they succeeded in having the properties
of his deceased father adjudicated and partitioned among
themselves; that the said intestate proceedings were
terminated on November 9, 1953; that his father left
properties valued at P74,963.81, and accordingly, as a
natural child of his father, he is entitled to at least
P18,000.00; and that he had absolutely no previous
knowledge of the intestate proceedings and came to know
about it only recently and thereupon made a demand from
the petitioners who refused to give him his share.
Accordingly, he prays that the petitioners be ordered to
acknowledge him as the natural child of Antonio C.
Alberto; that his one-fourth share be turned over to him;
and that petitioners be sentenced to pay him the sum of
P5,000.00 as attorney's fee and the cost of suit (Record on
Appeals, pp. 2-9).
On September 21, 1960, petitioners filed a Motion to
Dismiss on the grounds that (1) the cause of action is
barred by prior judgment; and (2) that the cause of action
is also barred by the statute of limitation (Ibid, pp. 9-19).
To this motion, private respondents filed an opposition on
October 22, 1960 (Ibid, pp. 20-58).
On November 11, 1960, the trial court issued an Order
denying the Motion to Dismiss (Ibid, pp. 97-98).
On November 18, 1964, petitioners filed their Answer to
the Complaint (Ibid, pp. 98-102).
On November 23, 1964, private respondent filed his
Answer to Defendants' Counterclaim (Ibid, pp. 102-104).
On August 10, 1964, the trial court rendered a decision in
favor of the petitioners (Ibid, pp. 104-123). The
dispositive portion of the Decision reads:
"Considering all the foregoing, the Court orders the
dismissal of the complaint without pronouncement as to
the costs. The counterclaim is also dismissed.
SO ORDERED."
Private respondent, not satisfied with the decision,
appealed to respondent Court, and in a Decision
promulgated on August 31, 1968 (Ibid, pp. 61-75),
respondent Court reversed the decision of the trial court.
The dispositive portion of the said Decision, reads:
"Wherefore, the decision appealed from is hereby
reversed and set aside and another rendered declaring
plaintiff Antonio J. Alberto, Jr., an acknowledged Natural
Child of the deceased Antonio C. Alberto; declaring said
plaintiff the owner pro indiviso of one-fifth (1/5) of the
hereditary estate of Antonio C. Alberto; and ordering the
defendants to deliver to plaintiff Antonio J. Alberto, Jr.,
his one-fifth (1/5) share in said estate, subject to the
usufructuary rights of defendants Natividad del Rosario
4
Vda. de Alberto pursuant to Articles 834 of the Old Civil
Code, and to pay the costs of suit.
SO ORDERED."
On September 24, 1968, petitioners filed a Motion for
Reconsideration, but the same was denied in a Resolution
dated October 14, 1968 (Rollo, p. 77). Hence, the instant
petition.
This Court, in a resolution dated November 27, 1968,
resolved to give due course to the petition (Rollo, p. 91).
Petitioners assigned the following errors:
I CATEGORICALLY STATED IN ITS DECISION.
THE HONORABLE COURT OF APPEALS ERRED IN
NOT HOLDING THAT THE COURT OF FIRST
INSTANCE OF MANILA (TRIAL COURT) HAD NO
JURISDICTION TO TAKE COGNIZANCE OF THE
INSTANT CASE.
II
ASSUMING, ARGUENDO, THAT THE TRIAL
COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT ALBERTO JR.'S
CAUSE OF ACTION WAS NOT BARRED BY PRIOR
JUDGMENT.
III
ASSUMING, ARGUENDO, THAT THE TRIAL
COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT ALBERTO JR.'S
CAUSE OF ACTION HAD NOT YET PRESCRIBED.
IV
ASSUMING, ARGUENDO, THAT THE TRIAL
COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS ERRED IN NOT
HOLDING THAT RESPONDENT ALBERTO, JR., IN
NOT BRINGING THE INSTANT ACTION FOR AN
UNREASONABLE LENGTH OF TIME, WAS GUILTY
OF LACHES.
V the subject matter of the present action had not been raised
ASSUMING, ARGUENDO, THAT THE TRIAL
COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS GROSSLY
ERRED IN REVERSING THE FINDINGS OF THE
TRIAL COURT BY BASING ITS JUDGMENT ON A
MISAPPREHENSION OF FACTS, GIVING
CREDENCE TO THE TESTIMONIES OF ANDREA
JONGCO AND OTHER WITNESSES OF
RESPONDENT ALBERTO, JR., DESPITE THE
SERIOUS CONTRADICTIONS, INCONSISTENCIES
AND IMPROBABILITIES IN THEIR TESTIMONIES
AS FOUND BY THE TRIAL COURT AND
VI
ASSUMING, ARGUENDO, THAT THE TRIAL
COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS COMMITTED A
GROSS ERROR OF LAW AND A GRAVE ABUSE OF
DISCRETION WHEN IT ARBITRARILY AND
CAPRICIOUSLY DISREGARDED PETITIONERS'
EVIDENCE.
VII
ASSUMING, ARGUENDO, THAT THE TRIAL
COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT ALBERTO, JR.,
WAS AN ACKNOWLEDGED NATURAL CHILD OF
THE DECEASED ALBERTO AND IN DECLARING
HIM OWNER PRO-INDIVISO OF ONE-FIFTH OF
THE HEREDITARY ESTATE OF THE DECEASED.
I.
It is the contention of petitioners that inasmuch as the
instant case was filed on September 8, 1960, almost five
(5) years after the enactment of R.A. No. 1401 - creating
the Juvenile and Domestic Relations Court, the questions
of paternity and acknowledgment fall beyond the
jurisdictional pale of the Court of First Instance of Manila
and instead comes within the exclusive original
jurisdiction of the Juvenile and Domestic Relations Court.
While petitioners admitted that this objection to lack of
jurisdiction by the Court of First Instance of Manila over
either in the said court or in the Court of Appeals and is
brought to this Court for resolution for the first time on
5
appeal, they contend that a party may object to the
jurisdiction of the court over the subject matter of the
action at any stage of the proceedings, even for the first
time on appeal since lack of jurisdiction of the court over
the subject matter cannot be waived. Such contention is
untenable.
This Court has already ruled that the question of
jurisdiction not raised in the trial court cannot be raised
on appeal (Dalman vs. City Court of Dipolog City, Branch
II, 134 SCRA 243 [1985]). Besides, a party who had
voluntarily participated in the trial, like the herein
petitioners, cannot later on raise the issue of the court's
lack of jurisdiction (Philippine National Bank vs.
Intermediate Appellate Court, 143 SCRA 299 [1986];
Royales vs. Intermediate Appellate Court, 127 SCRA 470
[1984]; Tijam vs. Sibonghanoy, 23 SCRA 29 [1968]).
Moreover, there are no more Juvenile and Domestic
Relations Courts today. Under Batas Pambansa Blg. 129,
the functions of the Juvenile and Domestic Relations
Court have been transferred to the Regional Trial Courts
(Divinagracia vs. Bellosillo, 143 SCRA 356 [1986]).
II.
Petitioners alleged that the intestate proceedings for the
settlement of estate of the deceased Antonio C. Alberto
(Special Proceedings No. 9092) had already been
terminated on November 9, 1953 by the order of
distribution directing the delivery of the residue of the
estate to the persons entitled thereto and that in said
proceedings the court also declared who are the heirs of
the deceased. Consequently, the instant case which seeks
to secure the recognition of Antonio J. Alberto, Jr. as an
acknowledged natural child of the deceased in order to
establish his rights to the inheritance is already barred by
prior judgment (Petitioners' Brief, p. 47) despite private
respondent's insistence that he had no knowledge or
notice of the intestate proceedings of his alleged natural
father (Record on Appeal, p. 21).
Petitioners' submission is impressed with merit.
This Court has invariably ruled that insolvency
proceedings and settlement of a decedent's estate are both
proceedings in rem which are binding against the whole
world. All persons having interest in the subject matter
involved, whether they were notified or not, are equally
bound (Philippine Savings Bank vs. Lantin, 124 SCRA
483 [1983]). The court acquires jurisdiction over all
persons interested, through the publication of the notice
prescribed x x x and any order that may be entered therein
is binding against all of them (Ramon vs. Ortuzar, 89 Phil.
741 [1951] citing in re Estate of Johnson, 39 Phil. 156).
It was ruled further that a final order of distribution of the
estate of a deceased person vests the title to the land of the
estate in the distributees; and that the only instance where
a party interested in a probate proceeding may have a final
liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or
inadvertence not imputable to negligence. Even then, the
better practice to secure relief is reopening of the same
case by proper motion within the reglementary period,
instead of an independent action, the effect of which, if
successful, would be, as in the instant case, for another
court or judge to throw out a decision or order already
final and executed and reshuffle properties long ago
distributed and disposed of (Ramon vs. Ortuzar, supra;
Santos vs. Roman Catholic Bishop of Nueva Caceres, 45
Phil. 895).
III.
As to the issue of prescription, the Civil Code of the
Philippines clearly provides:
"Art. 1100. The action for rescission on account of lesion
shall prescribe after four years from the time the partition
was made."
Intestate proceedings were terminated as alleged in the
complaint itself on November 9, 1953 so that said four
years prescriptive period expired on November 9, 1957.
Hence, the present action filed on September 8, 1960 and
which has for one of its objects the rescission of the
agreement of partition among the petitioners, as approved
by the intestate court, is already barred by prescription.
That an action for rescission is also the proper action in
case of an alleged preterition of a compulsory heir by
reason of alleged bad faith or fraud of the other persons
interested, which is what the complaint in this case alleges
in substance, is indicated in Article 1104 of the Civil Code
as follows:
"Art. 1104. A partition made with preterition of any of
the compulsory heirs shall not be rescinded, unless it be
proved that there was bad faith or fraud on the part of the
other persons interested; x x x."
It has also been ruled by this Court that the four years
period provided in Article 1100 of the Civil Code
(formerly Art. 1076 of the old Civil Code) should
commence to run from the approval of the agreement of
partition by the Court (Samson vs. Araneta, 60 Phil. 27,
6
36). Thus, in the case at bar, it is evident that the action
to rescind the Agreement of Partition which was approved
by the Court on November 9, 1953, had already
prescribed when respondent filed the complaint in the
case at bar on September 8, 1960.
While as a general rule the action for partition among co-
owners does not prescribe so long as the co-ownership is
expressly or impliedly recognized (Art. 494, Civil Code),
petitioners herein had never recognized respondent as a
co-owner or co-heir either expressly or impliedly.
Consequently, the rule on non-prescription of action for
partition of property owned in common (Art. 494) does
not apply to the case at bar.
Moreover, private respondent cannot claim exemption
from the effects of prescription on the plea of minority
under the New Civil Code which provides:
"Art. 1108. Prescription, both acquisitive and extinctive,
runs against:
(1) Minors and other incapacitated persons who have
parents, guardians or other legal representatives;
xxx xxx x x x"
Respondent Alberto, Jr. who has a living parent, his
mother, Andrea Jongco, who in fact filed the complaint in
the case at bar for him, falls squarely under the above-
cited provision.
Granting arguendo that respondent is a natural child of the
deceased Antonio Alberto, Sr., the action for recognition
of natural child may be brought only during the lifetime
of the presumed parent. And if the presumed father or
mother died during the minority of the child, the latter
may file the action within four (4) years from the
attainment of majority (Art. 285 [1]). However, if the
minor has a guardian as in this case, prescription runs
against him even during minority (Wenzel, etc., et al. vs.
Surigao Consolidated Mining, Inc., 108 Phil. 530 [1960]).
In such case, the action for recognition must be instituted
within four (4) years after the death of the natural father
(Magallanes, et al. vs. Court of Appeals, et al., 95 Phil.
795 [1954]). Antonio C. Alberto, Sr., the alleged father,
died on July 3, 1949. The complaint for acknowledgment
and partition was filed eleven (11) years later, on
September 8, 1960. Hence, prescription had set in.
Neither can it be claimed that the present action is in
substance one for recovery of property in order to avoid
the consequences of prescription, for as correctly stated
by the petitioners, to be entitled to the recovery of the
property from the estate. Alberto, Jr. must first rescind
the partition and distribution approved by the intestate
proceedings, otherwise, the recovery of any property from
the petitioners is not possible. Be that as it may, such
partition can no longer be rescinded having been already
barred by the Statute of Limitations.
Furthermore, even granting that Article 1104 of the Civil
Code does not apply and there is an injury to the rights of
plaintiff, this action would still not prosper under Articles
1146 and 1149 of the same Code which provide that the
action must be brought within four and five years,
respectively, from the time the right of action accrues.
IV.
Petitioners' claim of laches is likewise tenable. The trial
court in its findings clearly and unmistakably declared
that respondent Alberto, Jr. is guilty of laches as follows:
"About 1944, Andrea Jongco said she learned of Antonio
Alberto's marriage to Natividad del Rosario. Yet, she
took no steps to protect the interests of her child, Antonio,
although she was already confronted with the
incontrovertible proof of Antonio's infidelity and the
hallowness of his promises.
"It might be that Andrea Jongco was then relying on
Antonio Alberto's not denying that Alberto, Jr. was his
child, if such was the case. If this was so, however, how
can we explain her inaction even after the death of
Antonio Alberto in 1949, or until September 8, 1960,
when she filed this action, Andrea kept silent, took no
action to have her child recognized as the son of the
alleged father. Her laches, as well as the inherent
improbabilities in her testimony rendered it unworthy of
belief.
"x x x It is evident that the plaintiff's case is adversely
affected by his long delay in bringing this action. 'Undue
delay in the separate enforcement of a right is strongly
persuasive of lack of merit in this claim, since it is human
nature for a person to assert his rights most strongly when
they are threatened or invaded.' (Buenaventura vs. David,
37 Phil. 435-440)." (Record on Appeal, pp. 108-109).
This Court has consistently declared that laches is the
failure or neglect, for an unreasonable and unexplained
length of time, to do that which by exercising due
diligence, could or should have been done earlier. The
negligence or omission to assert a right within a
reasonable time, warrants a presumption that the party
entitled to assert it either has abandoned it or declined to
7
assert it (Corro vs. Lising, 137 SCRA 541 [1985]; Tejido
vs. Zamacoma, 138 SCRA 78 [1985]; De Castro vs. Tan,
129 SCRA 85 [1984]; Medija vs. Patcho, 132 SCRA 540
[1984]; Burgos, Sr. vs. Chief of Staff, Armed Forces of
the Phil., 133 SCRA 800 [1984]; Gumonpin vs. CA, 120
SCRA 687 [1983]).
As pointed out by the trial court, there appears to be no
explanation for the surprising delay in the filing of the
complaint in the case at bar except perhaps, the fact that
during the lifetime of the deceased Antonio Alberto,
private respondents were receiving support until the latter
died in 1949; but thereafter, they allowed more than ten
years to elapse or until September 8, 1960 before they
filed the present action to assert their rights despite
Andrea Jongco's allegation that they stopped receiving
support after Alberto, Sr.'s death.
On the other hand, there is merit in petitioners' allegations
that such delay is prejudicial to them. Private respondents
could have filed the action in 1944 when Andrea Jongco
learned of the marriage of the deceased with petitioner
Natividad del Rosario instead of waiting for 16 years
when the supposed father's lips had been sealed by death
and possible witnesses like Antonio Alberto, Sr.'s mother
had become too old to give coherent testimony.
On this point, the Supreme Court ruled:
"The assertion of doubtful claims, after long delay, cannot
be favored by the courts. Time inevitably tends to
obliterate occurrences from the memory of witnesses, and
even where the recollection appears to be entirely clear,
the true clue to the solution of a case may be hopelessly
lost. These considerations constitute one of the pillars of
the doctrine long familiar in equity jurisprudence to the
effect that laches or unreasonable delay on the part of a
plaintiff in seeking to enforce a right is not only
persuasive of a want of merit but may, according to the
circumstances, be destructive of the right itself.
Vigilantibus non dormientibus equites subvenit."
(Buenaventura vs. David, 37 Phil. 435, reiterated in
Edralin vs. Edralin, 1 SCRA 227 [1961]).
The other explanation might have been the minority of
Antonio Alberto, Jr. at the time of his supposed father's
death. But such explanation as discussed earlier is
unavailing even in case of prescription under Article 1108
of the Civil Code where minority does not stop the
running of the prescriptive period for minors who have
parents, guardians or legal representatives.
Thus, it is well established that "The law serves those who
are vigilant and diligent and not those who sleep when the
law requires them to act (Cui and Joven vs. Henson, 51
Phil. 606, 610; Bacolod-Murcia Milling Co. vs. Villaluz,
Sept. 29, 1951, 90 Phil. 154). "The law does not
encourage laches, indifference, negligence or ignorance.
On the contrary, for a party to deserve the considerations
of the courts, he x x x must show that he is not guilty of
any of the aforesaid failings (Samson vs. Yatco, August
28, 1958; 104 Phil. 378).
V.
Finally on the merits of this case, petitioners would have
this Court review and reverse the conclusions of fact of
the Court of Appeals. As a general rule, this is a function
this Court does not undertake. The established principle
is that the factual findings of the Court of Appeals are
final and may not be reviewed on appeal to this Court;
except: (1) when the conclusion is grounded entirely on
speculation, surmises and conjectures; (2) when the
inference is manifestly mistaken, absurd and impossible;
(3) where there is grave abuse of discretion; (4) when the
judgment is based on a misapprehension of facts; (5)
when the Court in making its findings went beyond the
issues of the case, and the same are contrary to the
admissions of both the appellant and the appellee; (6)
when the findings of the Appellate Court are contrary to
those of the trial court; (7) when the findings are without
citation of specific evidence on which they are based
(Manlapaz vs. C.A., 147 SCRA 238-239 [1987]; Guita vs.
C.A., 139 SCRA 576 [1985]; Sacay vs. Sandiganbayan,
147 SCRA 593 [1986]).
It is readily evident that this case falls within one of the
recognized exceptions to the rule, specifically that the
findings of the Appellate Court are contrary to those of
the trial court.
At the trial, the lower court in evaluating the evidence
presented by the complainants is of the view that the
testimony alone of Andrea Jongco is sufficient to totally
discredit not only her testimony but also her entire case.
Aside from being inherently improbable and the merit of
her claim being adversely affected by her testimony and
her long delay in bringing action, her testimony is
contradicted by the testimonies of Jose, Zoilo and Pilar
who are brothers and sister of the deceased Antonio
Alberto and who have no pecuniary interest whatsoever
in the outcome of the controversy. They testified that
during the period Andrea Jongco claimed that Antonio
Alberto, Sr. lived with her, the deceased in fact lived with
8
his mother and brothers at the family residence except for
his brief stint with the army (Decision, Civil Case No.
44164; Record on appeal, pp. 111-112).
More than that, the trial court found among others, that
Andrea Jongco has had five children (aside from her son
Antonio) with four different men. The assumption,
therefore, is that she lived with at least four different men
without being married to any of them. Thus, the trial court
aptly ruled that "This propensity to promiscuous
relationship with different men, render it unjust to state
with definiteness that any particular person is the father of
any one of her children." (Ibid, p. 121).
Other witnesses are Eufracia Cailan who allegedly took
care of Antonio, the father, since the latter was a child and
then of Antonio, the alleged son, and Encarnacion Peralta,
an alleged former lessor of Andrea Jongco and Antonio
Alberto. Their testimonies were, however, found by the
trial court to be inherently improbable, inconsistent with
human experience and deliberately invented to conform
with the testimony of Andrea Jongco (Ibid, pp. 109-117).
On the other hand, the Court of Appeals in its decision
gave more credence to the testimonies of Eufracia Cailan
and Encarnacion Peralta and declared that their
testimonies have sufficiently established the fact that
Antonio J. Alberto, Jr. is the son of the late Antonio C.
Alberto and Andrea Jongco which finds further proof in
the birth certificate and the baptismal certificate of
Alberto, Jr., (Rollo, pp. 6-11).
In this connection, it must be stated that in the case of
Reyes vs. Court of Appeals, 135 SCRA 439 (1985), this
Court, citing the cases of Bercilles vs. GSIS, 128 SCRA
53; People vs. Villeza, 127 SCRA 349; Cid vs. Burnaman,
24 SCRA 434; Vudaurrazaga vs. C.A., 91 Phil. 492; and
Capistrano vs. Gabino, 8 Phil. 135, ruled that a birth
certificate not signed by the alleged father therein
indicated, like in the instant case, is not competent
evidence of paternity.
In casting doubt upon the credibility of petitioner
Natividad's testimony, the Court of Appeals pointed out
her serious inconsistency on material points such as her
claim that she was married to the deceased in 1941 and
her later admission in the answer that they were married
in 1944.
The record shows, however, that both admissions were
correct, the first marriage was a secret civil marriage
celebrated in Pililla, Rizal while the second was a
religious ratification of the former. The lack of marriage
certificate as evidence was also considered by the Court
of Appeals as an impairment of credibility despite a
certification to the effect that all pre-war records in the
Municipality of Pililla Rizal were destroyed during the
last war. Said Appellate Court is of the view that if they
did plan to marry secretly at that time, they could have
chosen a city or municipality near Manila and that Pililla
must have been chosen as the place of the supposed
marriage so that petitioners could have an apparent good
reason for the non-presentation of the marriage certificate.
As aptly argued by the petitioners, such conclusion is
purely conjectural. Besides petitioners' reasons for the
choice of that place, the celebration of the marriage was
positively confirmed by Damaso Herrera, one of the
sponsors thereof.
In any event, it is a fundamental rule that conclusions and
findings of fact by the trial court are entitled to great
weight on appeal and should not be disturbed unless for
strong and cogent reasons because the trial court is in a
better position to examine real evidence, as well as to
observe the demeanor of the witnesses while testifying in
the case (People vs. Pimentel, 147 SCRA 29, 30 [1987];
People vs. Grefiel, 125 SCRA 108 [1983]; Chase vs.
Buencamino, 136 SCRA 381 [1985]; People vs.
Fernandez, 124 SCRA 248 [1983]; Olangco vs. C.F.I. of
Misamis Oriental, 121 SCRA 338 [1983]; Minuchechi vs.
C.A., 129 SCRA 479 [1984]).
After a careful review of the records and the evidence
presented by the contending parties, no cogent reasons
could be found to justify the reversal of the findings of the
trial court.
In view of the foregoing, there appears to be no need to
discuss the last two assignments of errors.
WHEREFORE, the assailed decision of the Court of
Appeals is hereby Reversed and the decision of the trial
court is Reinstated. No costs.
OSCAR C. REYES, petitioner, vs. HON. REGIONAL
TRIAL COURT OF MAKATI, Branch 142, ZENITH
INSURANCE CORPORATION and RODRIGO C.
REYES, respondents.
FACTS:
Petitioner and private respondent were siblings together
with two others, namely Pedro and Anastacia, in a family
business established as Zenith Insurance Corporation
9
(Zenith), from which they owned shares of stocks. The
Pedro and Anastacia subsequently died. The former had
his estate judicially partitioned among his heirs, but the
latter had not made the same in her shareholding in
Zenith. Zenith and Rodrigo filed a complaint with the
Securities and Exchange Commission (SEC) against
petitioner (1) a derivative suit to obtain accounting of
funds and assets of Zenith, and (2) to determine the shares
of stock of deceased Pedro and Anastacia that were
arbitrarily and fraudulently appropriated [by Oscar, and
were unaccounted for]. In his answer with counterclaim,
petitioner denied the illegality of the acquisition of shares
of Anastacia and questioned the jurisdiction of SEC to
entertain the complaint because it pertains to settlement
of [Anastacia’s] estate. The case was transferred to.
Petitioner filed Motion to Declare Complaint as Nuisance
or Harassment Suit and must be dismissed. RTC denied
the motion. The motion was elevated to the Court of
Appeals by way of petition for certiorari, prohibition and
mandamus, but was again denied.
ISSUES:
Mercantile Law
(1) Whether or not Rodrigo may be considered a
stockholder of Zenith with respect to the shareholdings
originally belonging to Anastacia.
(2) Whether or not there is an intra-corporate relationship
between the parties that would characterize the case as an
intra-corporate dispute?
Remedial Law
(1) Whether or not the complaint is a mere nuisance or
harassment suit that should be dismissed under the
Interim Rules of Procedure of Intra-Corporate
Controversies;
(2) Whether or not the complaint is a derivative suit
within the jurisdiction of the RTC acting as a special
commercial court.
RULINGS:
Mercantile Law
(1) No. Rodrigo must, hurdle two obstacles before he can
be considered a stockholder of Zenith with respect to the
shareholdings originally belonging to Anastacia. First, he
must prove that there are shareholdings that will be left to
him and his co-heirs, and this can be determined only in a
settlement of the decedent’s estate. No such proceeding
has been commenced to date. Second, he must register the
transfer of the shares allotted to him to make it binding
against the corporation. He cannot demand that this be
done unless and until he has established his specific
allotment (and prima facie ownership) of the shares.
Without the settlement of Anastacia’s estate, there can be
no definite partition and distribution of the estate to the
heirs. Without the partition and distribution, there can be
no registration of the transfer. And without the
registration, we cannot consider the transferee-heir a
stockholder who may invoke the existence of an intra-
corporate relationship as premise for an intra-corporate
controversy within the jurisdiction of a special
commercial court. The subject shares of stock (i.e.,
Anastacia’s shares) are concerned – Rodrigo cannot be
considered a stockholder of Zenith.
(2) No. Court cannot declare that an intra-corporate
relationship exists that would serve as basis to bring this
case within the special commercial court’s jurisdiction
under Section 5(b) of PD 902-A, as amended because
Rodrigo’s complaint failed the relationship test above.
Remedial Law
(1) Yes. The rule is that a complaint must contain a plain,
concise, and direct statement of the ultimate facts
constituting the plaintiff’s cause of action and must
specify the relief sought. Section 5, Rule 8 of the Revised
Rules of Court provides that in all averments of fraud or
mistake, the circumstances constituting fraud or mistake
must be stated with particularity. These rules find specific
application to Section 5(a) of P.D. No. 902-A which
speaks of corporate devices or schemes that amount to
fraud or misrepresentation detrimental to the public
and/or to the stockholders.
Allegations of deceit, machination, false pretenses,
misrepresentation, and threats are largely conclusions of
law that, without supporting statements of the facts to
which the allegations of fraud refer, do not sufficiently
state an effective cause of action. Fraud and mistake are
required to be averred with particularity in order to enable
the opposing party to controvert the particular facts
allegedly constituting such fraud or mistake. Tested
against these standards, charges of fraud against Oscar
were not properly supported by the required factual
allegations. While the complaint contained allegations of
fraud purportedly committed by him, these allegations are
10
not particular enough to bring the controversy within the
special commercial court’s jurisdiction; they are not
statements of ultimate facts, but are mere conclusions of
law: how and why the alleged appropriation of shares can
be characterized as “illegal and fraudulent” were not
explained nor elaborated on. The case must be dismissed.
(2) No. The allegations of the present complaint do not
amount to a derivative suit. First, as already discussed
above, Rodrigo is not a shareholder with respect to the
shareholdings originally belonging to Anastacia; he only
stands as a transferee-heir whose rights to the share are
inchoate and unrecorded. Second, in order that a
stockholder may show a right to sue on behalf of the
corporation, he must allege with some particularity in his
complaint that he has exhausted his remedies within the
corporation by making a sufficient demand upon the
directors or other officers for appropriate relief with the
expressed intent to sue if relief is denied. Lastly, Court
found no injury, actual or threatened, alleged to have been
done to the corporation due to Oscar’s acts. If indeed he
illegally and fraudulently transferred Anastacia’s shares
in his own name, then the damage is not to the corporation
but to his co-heirs; the wrongful transfer did not affect the
capital stock or the assets of Zenith.
In summary, whether as an individual or as a derivative
suit, the RTC – sitting as special commercial court – has
no jurisdiction to hear Rodrigo’s complaint since what is
involved is the determination and distribution of
successional rights to the shareholdings of Anastacia
Reyes. Rodrigo’s proper remedy, under the
circumstances, is to institute a special proceeding for the
settlement of the estate of the deceased Anastacia Reyes,
a move that is not foreclosed by the dismissal of his
present complaint.
RICARDO S. SILVERIO, JR. Petitioner,
vs.
COURT OF APPEALS (Fifth Division) and NELIA S.
SILVERIO-DEE, Respondents.
The Case
This Petition for Review on Certiorari under Rule 65
seeks the reversal of the May 4, 2007 Resolution1 and
July 6, 2007 Decision2 of the Court of Appeals (CA) in
CA-G.R. SP No. 98764, entitled Nelia S. Silverio-Dee
and Ricardo C. Silverio, Sr. (impleaded as necessary
party) v. Reinato G. Quilala, in his capacity as Presiding
Judge of the RTC of Makati, Branch 57, Ricardo S.
Silverio, Jr., Edmundo S. Silverio, represented by Nestor
Dela Merced II, and Sheriff Villamor R. Villegas.
The assailed resolution granted private respondent’s
prayer for the issuance of a Temporary Restraining Order
against public respondent Judge Quilala. On the other
hand, the assailed decision set aside the Writ of Execution
dated April 17, 2007 and the Notice to Vacate dated April
19, 2007 while directing the respondent lower court to
give due course to the appeal of herein private respondent.
The Facts
The instant controversy stemmed from the settlement of
estate of the deceased Beatriz Silverio. After her death,
her surviving spouse, Ricardo Silverio, Sr., filed an
intestate proceeding for the settlement of her estate. The
case was docketed as SP. PROC. NO. M-2629 entitled In
Re: Estate of the Late Beatriz D. Silverio, Ricardo C.
Silverio, Sr. v. Ricardo S. Silverio Jr., et al. pending
before the Regional Trial Court (RTC) of Makati City,
Branch 57 (RTC).
On November 16, 2004, during the pendency of the case,
Ricardo Silverio, Jr. filed a petition to remove Ricardo C.
Silverio, Sr. as the administrator of the subject estate. On
November 22, 2004, Edmundo S. Silverio also filed a
comment/opposition for the removal of Ricardo C.
Silverio, Sr. as administrator of the estate and for the
appointment of a new administrator.
On January 3, 2005, the RTC issued an Order granting the
petition and removing Ricardo Silverio, Sr. as
administrator of the estate, while appointing Ricardo
Silverio, Jr. as the new administrator.
On January 26, 2005, Nelia S. Silverio-Dee filed a Motion
for Reconsideration of the Order dated January 3, 2005,
as well as all other related orders.
On February 4, 2005, Ricardo Silverio Jr. filed an Urgent
Motion for an Order Prohibiting Any Person to
Occupy/Stay/Use Real Estate Properties Involved in the
Intestate Estate of the Late Beatriz Silverio, Without
Authority from this Honorable Court.3
Then, on May 31, 2005, the RTC issued an Omnibus
Order4 affirming its Order dated January 3, 2005 and
denying private respondent’s motion for reconsideration.
In the Omnibus Order, the RTC also authorized Ricardo
Silverio, Jr. to, upon receipt of the order, immediately
exercise his duties as administrator of the subject estate.
The Omnibus Order also directed Nelia S. Silverio-Dee to
11
vacate the property at No. 3, Intsia, Forbes Park, Makati
City within fifteen (15) days from receipt of the order.
Nelia Silverio-Dee received a copy of the Omnibus Order
dated May 31, 2005 on June 8, 2005.
On June 16, 2005, private respondent filed a Motion for
Reconsideration dated June 15, 20055 of the Omnibus
Order. This was later denied by the RTC in an Order dated
December 12, 2005, which was received by private
respondent on December 22, 2005.
Notably, the RTC in its Order dated December 12, 20056
also recalled its previous order granting Ricardo Silverio,
Jr. with letters of administration over the intestate estate
of Beatriz Silverio and reinstating Ricardo Silverio, Sr. as
the administrator.
From the Order dated December 12, 2005, Ricardo
Silverio, Jr. filed a motion for reconsideration which was
denied by the RTC in an Order dated October 31, 2006.
In the same order, the RTC also allowed the sale of
various properties of the intestate estate of the late Beatriz
Silverio to partially settle estate taxes, penalties, interests
and other charges due thereon. Among the properties
authorized to be sold was the one located at No. 3 Intsia
Road, Forbes Park, Makati City.7
Meanwhile, on January 6, 2006, Nelia Silverio-Dee filed
a Notice of Appeal dated January 5, 20068 from the Order
dated December 12, 2005 while the Record on Appeal
dated January 20, 20069 was filed on January 23, 2006.
Thereafter, on October 23, 2006, Ricardo Silverio, Jr.
filed a Motion to Dismiss Appeal and for Issuance of a
Writ of Execution10 against the appeal of Nelia Silverio-
Dee on the ground that the Record on Appeal was filed
ten (10) days beyond the reglementary period pursuant to
Section 3, Rule 41 of the Rules of Court.
Thus, on April 2, 2007, the RTC issued an Order11
denying the appeal on the ground that it was not perfected
within the reglementary period. The RTC further issued a
writ of execution for the enforcement of the Order dated
May 31, 2005 against private respondent to vacate the
premises of the property located at No. 3, Intsia, Forbes
Park, Makati City. The writ of execution was later issued
on April 17, 200712 and a Notice to Vacate13 was issued
on April 19, 2007 ordering private respondent to leave the
premises of the subject property within ten (10) days.
Consequently, private respondent filed a Petition for
Certiorari and Prohibition (With Prayer for TRO and Writ
of Preliminary Injunction) dated May 2, 200714 with the
CA.
On May 4, 2007, the CA issued the assailed Resolution
granting the prayer for the issuance of a TRO. In issuing
the TRO, the CA ruled that the Notice of Appeal was filed
within the reglementary period provided by the Rules of
Court applying the "fresh rule period" enunciated by this
Court in Neypes v. Court of Appeals15 as reiterated in
Sumaway v. Union Bank.16
Afterwards, on July 6, 2007, the CA issued the assailed
decision granting the petition of private respondent. The
dispositive portion reads:
WHEREFORE, in view of the foregoing, the instant
petition is GRANTED and GIVEN DUE COURSE.
Accordingly, the Order, dated April 2, 2007, the writ of
execution, dated April 17, 2007, and the Notice to Vacate,
dated April 19, 2007, are ANNULLED AND SET
ASIDE. Further, the court a quo is hereby directed to give
due course to the appeal of Nelia S. Silverio-Dee.
SO ORDERED.
Hence, the instant petition.
The Issues
-A-
The Omnibus Order dated May 31, 2005 (Annex G of
Annex C) and the Order dated December 12, 2005 are
Interlocutory Orders which are not subject to appeal under
Sec. 1 of Rule 41;
-B-
The respondent Court seriously erred and/or committed
grave abuse of discretion amounting to lack of or excess
of jurisdiction, in deliberately failing to decide that the
basis of the occupancy of Nelia S. Silverio-Dee are
fraudulent documents, without any authority from the
Intestate Court;
-C-
The respondent Court seriously erred and/or committed
grave abuse of discretion amounting to lack of or excess
of jurisdiction, in issuing precipitately the temporary
restraining order (TRO) in its Resolution dated May 4,
2007 (Annex A-1);
-D-
12
The respondent Court seriously erred and/or committed
grave abuse of discretion amounting to lack of or excess
of jurisdiction in annulling the Order dated April 2, 2007,
the Writ of Execution dated April 17, 2007, and the
Notice to Vacate dated April 19, 2007 because the
respondent Silverio-Dee’s occupancy of the Intestate
property located at No. 3 Intsia Road, Forbes Park, Makati
City (Annex N of Annex C) will prevent the sale
authorized by the Order dated October 31, 2006 to secure
funds for the payment of taxes due which are now high
and rapidly increasing payment of which must not be
enjoined.17
The Court’s Ruling
This petition is meritorious.
The May 31, 2005 Order of the RTC Is an Interlocutory
Order, Not Subject to an Appeal
To recapitulate, the relevant facts to the instant issue are
as follows:
On May 31, 2005, the RTC issued an Omnibus Order
ordering Nelia Silverio-Dee to vacate the premises of the
property located at No. 3, Intsia Road, Forbes Park,
Makati City. She received a copy of the said Order on
June 8, 2005. Instead of filing a Notice of Appeal and
Record on Appeal, private respondent filed a motion for
reconsideration of the Order. This motion for
reconsideration was denied in an Order dated December
12, 2005. This Order was received by private respondent
on December 22, 2005. On January 6, 2006, private
respondent filed her Notice of Appeal while she filed her
Record on Appeal on January 23, 2006.1avvphi1
Thus, in denying due course to the Notice/Record on
Appeal, the RTC, in its Order dated April 2, 2007, ruled:
Verily, the appeal taken by the movant Nelia Silverio-Dee
from the Order of this Court dated December 12, 2005
denying the Motion for Reconsideration is misplaced as
no appeal may be taken from the order denying the motion
for reconsideration (see Section 1, Rule 41 of the 1997
Rules of Civil Procedure in relation to Section 1(f), Rule
109 of the Rules of Court). Furthermore, assuming that
what said movant had appealed is the final Order dated
May 31, 2005, still, the appeal cannot be given due course
as the Record on Appeal had been filed beyond the thirty-
day period to appeal (see Section 3 Rule 41 of the Rules
of Court)
WHEREFORE, the appeal filed by Nelia Silverio is
hereby DENIED due course.
Let a writ of execution issue to enforce the Order dated
May 31, 2005 against Nelia Silverio-Dee requiring her to
vacate the premises at No. 3 Intsia, Forbes Park, Makati
City.
Thus, the denial of due course by the RTC was based on
two (2) grounds: (1) that Nelia Silverio-Dee’s appeal was
against an order denying a motion for reconsideration
which is disallowed under Sec. 1(a), Rule 41 of the Rules
of Court; and (2) that Nelia Silverio-Dee’s Record on
Appeal was filed beyond the reglementary period to file
an appeal provided under Sec. 3 of Rule 41.
Sec. 1(a), Rule 41 of the Rules of Court provides:
RULE 41
APPEAL FROM THE REGIONAL TRIAL COURTS
SECTION 1. Subject of appeal.—An appeal may be taken
from a judgment or final order that completely disposes
of the case, or of a particular matter therein when declared
by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
xxxx
In all the above instances where the judgment or final
order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.
Petitioner argues that because private respondent filed a
Notice of Appeal from the Order dated December 12,
2005 which denied her motion for reconsideration of the
Omnibus Order dated May 31, 2005, her appeal is of an
order denying a motion for reconsideration. Thus,
petitioner alleges that private respondent employed the
wrong remedy in filing a notice of appeal and should have
filed a petition for certiorari with the CA under Rule 65
of the Rules of Court instead.
The CA, however, ruled that the filing of the Notice of
Appeal in this case was proper saying that the appeal
pertained to the earlier Omnibus Order dated May 31,
2005. The CA, citing Apuyan v. Haldeman,18 argued that
an order denying a motion for reconsideration may be
appealed as such order is the "final order" which disposes
of the case. In that case, we stated:
In the recent case of Quelnan v. VHF Philippines, Inc.,
We held, thus:
13
… [T]his Court finds that the proscription against
appealing from an order denying a motion for
reconsideration refers to an interlocutory order, and not to
a final order or judgment. That that was the intention of
the above-quoted rules is gathered from Pagtakhan v.
CIR, 39 SCRA 455 (1971), cited in above-quoted portion
of the decision in Republic, in which this Court held that
an order denying a motion to dismiss an action is
interlocutory, hence, not appealable.
The rationale behind the rule proscribing the remedy of
appeal from an interlocutory order is to prevent undue
delay, useless appeals and undue inconvenience to the
appealing party by having to assail orders as they are
promulgated by the court, when they can be contested in
a single appeal. The appropriate remedy is thus for the
party to wait for the final judgment or order and assign
such interlocutory order as an error of the court on appeal.
The denial of the motion for reconsideration of an order
of dismissal of a complaint is not an interlocutory order,
however, but a final order as it puts an end to the particular
matter resolved, or settles definitely the matter therein
disposed of, and nothing is left for the trial court to do
other than to execute the order.
Not being an interlocutory order, an order denying a
motion for reconsideration of an order of dismissal of a
complaint is effectively an appeal of the order of dismissal
itself.
The reference by petitioner, in his notice of appeal, to the
March 12, 1999 Order denying his Omnibus Motion—
Motion for Reconsideration should thus be deemed to
refer to the January 17, 1999 Order which declared him
non-suited and accordingly dismissed his complaint.
If the proscription against appealing an order denying a
motion for reconsideration is applied to any order, then
there would have been no need to specifically mention in
both above-quoted sections of the Rules "final orders or
judgments" as subject to appeal. In other words, from the
entire provisions of Rule 39 and 41, there can be no
mistaking that what is proscribed is to appeal from a
denial of a motion for reconsideration of an interlocutory
order. (Emphasis supplied.)
Thus, the question posed is whether the Omnibus Order
dated May 31, 2005 is an interlocutory order.
On this aspect, the CA ruled that the Omnibus Order dated
May 31, 2005 was a final order, to wit:
We note that the Order, dated December 12, 2005, is an
offshoot of the Omnibus Order, dated May 31, 2005. In
the Omnibus Order, the court a quo ruled that the
petitioner, as an heir of the late Beatriz S. Silverio, had no
right to use and occupy the property in question despite
authority given to her by Ricardo Silverio, Sr. when it
said, thus:
x x x In the first place, Nelia S. Silverio-Dee cannot
occupy the property in Intsia, Forbes Park, admittedly
belonging to the conjugal estate and subject to their
proceedings without authority of the Court. Based on the
pretenses of Nelia Silverio-Dee in her memorandum, it is
clear that she would use and maintain the premises in the
concept of a distributee. Under her perception, Section 1
Rule 90 of the Revised Rules of Court is violated. x x x
xxxx
For the property at Intsia, Forbes Park cannot be occupied
or appropriated by, nor distributed to Nelia S. Silverio-
Dee, since no distribution shall be allowed until the
payment of the obligations mentioned in the aforestated
Rule is made. In fact, the said property may still be sold
to pay the taxes and/or other obligations owned by the
estate, which will be difficult to do if she is allowed to
stay in the property.
Moreover, the alleged authority given by SILVERIO, SR.
for Nelia S. Silverio-Dee to occupy the property dated
May 4, 2004, assuming it is not even antedated as alleged
by SILVERIO, JR., is null and void since the possession
of estate property can only be given to a purported heir by
virtue of an Order from this Court (see Sec. 1 Rule 90,
supra; and Sec. 2 Rule 84, Revised Rules of Court). In
fact, the Executor or Administrator shall have the right to
the possession and management of the real as well as the
personal estate of the deceased only when it is necessary
for the payment of the debts and expenses of
administration (See Sec. 3 Rule 84, Revised Rules of
Court). With this in mind, it is without an iota of doubt
that the possession by Nelia S. Silverio-Dee of the
property in question has absolutely no legal basis
considering that her occupancy cannot pay the debts and
expenses of administration, not to mention the fact that it
will also disturb the right of the new Administrator to
possess and manage the property for the purpose of
settling the estate’s legitimate obligations.
In the belated Memorandum of Nelia Silverio-Dee, she
enclosed a statement of the expenses she incurred
pertaining to the house renovation covering the period
14
from May 26, 2004 to February 28, 2005 in the total
amount of Php12,434,749.55, which supports this Court’s
conclusion that she is already the final distributee of the
property. Repairs of such magnitude require notice,
hearing of the parties and approval of the Court under the
Rules. Without following this process, the acts of Nelia
Silverio-Dee are absolutely without legal sanction.
To our mind, the court a quo’s ruling clearly constitutes a
final determination of the rights of the petitioner as the
appealing party. As such, the Omnibus Order, dated May
31, 2002 (the predecessor of the Order dated December
12, 2002) is a final order; hence, the same may be
appealed, for the said matter is clearly declared by the
rules as appealable and the proscription does not apply.19
(Emphasis supplied.)
An interlocutory order, as opposed to a final order, was
defined in Tan v. Republic:20
A final order is one that disposes of the subject matter in
its entirety or terminates a particular proceeding or action,
leaving nothing else to be done but to enforce by
execution what has been determined by the court, while
an interlocutory order is one which does not dispose of
the case completely but leaves something to be decided
upon. (Emphasis supplied.)
Additionally, it is only after a judgment has been rendered
in the case that the ground for the appeal of the
interlocutory order may be included in the appeal of the
judgment itself. The interlocutory order generally cannot
be appealed separately from the judgment. It is only when
such interlocutory order was rendered without or in
excess of jurisdiction or with grave abuse of discretion
that certiorari under Rule 65 may be resorted to.21
In the instant case, Nelia Silverio-Dee appealed the May
31, 2005 Order of the RTC on the ground that it ordered
her to vacate the premises of the property located at No. 3
Intsia Road, Forbes Park, Makati City. On that aspect the
order is not a final determination of the case or of the issue
of distribution of the shares of the heirs in the estate or
their rights therein. It must be borne in mind that until the
estate is partitioned, each heir only has an inchoate right
to the properties of the estate, such that no heir may lay
claim on a particular property. In Alejandrino v. Court of
Appeals, we succinctly ruled:
Art. 1078 of the Civil Code provides that where there are
two or more heirs, the whole estate of the decedent is,
before partition, owned in common by such heirs, subject
to the payment of the debts of the deceased. Under a co-
ownership, the ownership of an undivided thing or right
belongs to different persons. Each co-owner of property
which is held pro indiviso exercises his rights over the
whole property and may use and enjoy the same with no
other limitation than that he shall not injure the interests
of his co-owners. The underlying rationale is that until a
division is made, the respective share of each cannot be
determined and every co-owner exercises, together with
his co-participants, joint ownership over the pro indiviso
property, in addition to his use and enjoyment of the same.
Although the right of an heir over the property of the
decedent is inchoate as long as the estate has not been
fully settled and partitioned, the law allows a co-owner to
exercise rights of ownership over such inchoate right.
Thus, the Civil Code provides:
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 involved. 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.22 (Emphasis supplied.)
Additionally, the above provision must be viewed in the
context that the subject property is part of an estate and
subject to intestate proceedings before the courts. It is,
thus, relevant to note that in Rule 84, Sec. 2 of the Rules
of Court, the administrator may only deliver properties of
the estate to the heirs upon order of the Court. Similarly,
under Rule 90, Sec. 1 of the Rules of Court, the properties
of the estate shall only be distributed after the payment of
the debts, funeral charges, and other expenses against the
estate, except when authorized by the Court.
Verily, once an action for the settlement of an estate is
filed with the court, the properties included therein are
under the control of the intestate court. And not even the
administrator may take possession of any property that is
part of the estate without the prior authority of the Court.
In the instant case, the purported authority of Nelia
Silverio-Dee, which she allegedly secured from Ricardo
Silverio, Sr., was never approved by the probate court.
She, therefore, never had any real interest in the specific
property located at No. 3 Intsia Road, Forbes Park, Makati
City. As such, the May 31, 2005 Order of the RTC must
be considered as interlocutory and, therefore, not subject
to an appeal.1avvphi1
15
Thus, private respondent employed the wrong mode of
appeal by filing a Notice of Appeal with the RTC. Hence,
for employing the improper mode of appeal, the case
should have been dismissed.23
The implication of such improper appeal is that the notice
of appeal did not toll the reglementary period for the filing
of a petition for certiorari under Rule 65, the proper
remedy in the instant case. This means that private
respondent has now lost her remedy of appeal from the
May 31, 2005 Order of the RTC.
Therefore, there is no longer any need to consider the
other issues raised in the petition.
WHEREFORE, the May 4, 2007 Resolution and July 6,
2007 Decision of the CA in CA-G.R. SP No. 98764 are
REVERSED and SET ASIDE. Thus, the Decision dated
April 2, 2007 of the RTC denying due course to the appeal
of Nelia Silverio-Dee; the Writ of Execution dated April
17, 2007; and the Notice to Vacate dated April 19, 2007
are hereby REINSTATED.
G.R. No. L-42615 August 10, 1976
SALUD DIVINAGRACIA, EMILIA
DIVINAGRACIA, DOLORES DIVINAGRACIA,
ROSARIO DIVINAGRACIA and JUANITA
DIVINAGRACIA, petitioners,
vs.
JUDGE VALERIO V. ROVIRA in his capacity as
Presiding Judge, Branch IV, Court of First Instance,
Iloilo City, and CAMILO DIVINAGRACIA,
respondents.
AQUINO, J.:
The question in this case is whether an intestate
proceeding, which had already been closed, can still be
reopened so as to allow a spurious child to present
evidence on his filiation and to claim his share in the
decedent's estate. The facts are as follows;
Feliciano Divinagracia died in Iloilo City on February 1,
1964. He was survived by his wife, Salud and their four
daughters named Emilia, Dolores, Rosario, and Juanita.
The notice of his death was published in two local
periodicals and in the Manila times. Two days after his
death, a petition was filed in the Court of First Instance of
Iloilo for the settlement of his estate (Spec. Proc. No.
1752). The order setting the petition for hearing was
published on April 22 and 29 and May 6, 1964 in the
Yuhum, an English and Ilongo weekly circulating in
Iloilo City and Western Visayas. Emilia Divinagracia
qualified as administratrix on May 22, 1964. She
administered the estate for seven years. She paid the estate
and inheritance taxes. In April, 1971 she submitted to the
court a final accounting and project of partition with a
prayer for the closure of the proceeding. That pleading,
which was signed by the widow and her four daughters,
contains, aside from the accounting, (1) an inventory of
the assets of the decedent's estate as of December 31, 1970
(par. 3); (2) a declaration as to who were the heirs of the
decedent and their respective shares in the estate (par. 4);
(3) a statement that the five heirs (the widow and four
daughters) had received their respective shares, each
consisting of a one-fifth proindiviso participation in the
decedent's estate (pars. 5 and 6), and (4) an assumption by
the heirs of the obligations of the estate (par. 8).
Judge Castrense C. Veloso in his order of April 17, 1971
approved the final accounting and project of partition and
declared the proceeding "closed and terminated, subject
to the condition that the heirs shall assume all the
outstanding obligations of the estate". The partition was
duly registered.
On June 8, 1971 or after the order closing the intestate
proceeding had become final, Camilo Divinagracia filed
a motion to reopen it and to set aside the order of closure.
He alleged that he was an illegitimate child of the
decedent; that he was born on November 9, 1930, and that
he came to know of the intestate proceeding only when he
was transferred as a government employee from Masbate
to Iloilo a few days before June 8. He prayed for the
determination of his share in the decedent's estate.
The administratrix in her opposition to the motion
contended that the proceeding could no longer be
reopened; that its expediente had already been archived;
that there is no allegation in the motion that Camilo's
filiation was acknowledged by the decedent, and that the
Juvenile and Domestic Relations Court of Iloilo has
exclusive original jurisdiction to entertain Camilo's action
for acknowledgment, as held in Paterno vs. Paterno, L-
23060, June 30, 1967, 20 SCRA 585.
The motion remained unresolved for more than four
years. Judge Veloso did not act on it before he retired in
the early part of 1975. The case was re-raffled to
respondent Judge Valerie V. Rovira who issued the
questioned order dated October 18, 1975 reopening the
intestate proceeding.
16
The probate court set aside its prior order of closure
because it assumed that there was no liquidation of the
conjugal partnership of the spouses Feliciano
Divinagracia and Salud Bretaña that there was no
declaration of heirs, and that an interested party, who was
left out in the partition, should be allowed to secure relief
in the intestate proceeding by filing the proper motion
within the reglementary period.
The probate court in its questioned order directed the
administratrix to submit a complete liquidation of the
conjugal partnership and an inventory of the decedent's
estate after the payment of its debts. It further directed that
the liquidation and the inventory should be set for hearing
with notice to movant Camilo Divinagracia. Thereafter,
another hearing should be held to determine the
decedent's heirs. At the hearing, Camilo could present
evidence to prove his claim that he was an Id
acknowledged spurious child of the deceased.
The lower court denied the administratrix's motion for
reconsideration of its order reopening the intestate
proceeding. A copy of the order of denial was received by
the administratrix on January 7, 1976. She filed on
January 31, 1976 the instant petition for certiorari and
prohibition. It is really an appeal under Republic Act No.
5440.
We hold that the probate court erred in reopening the
intestate proceeding, a proceeding in rem of which
Camilo Divinagracia is deemed to have had constructive
notice (Varela vs. Villanueva, 95 Phil. 248). The order
closing it was already final and executory. The motion to
reopen it was not filed within the thirty-day reglementary
period counted from the date the order of closure was
served on the administratrix. The closure order could not
be disturbed anymore (Imperial vs. Muñoz, L-30787,
August 29, 1974, 58 SCRA 678. Compare with Ramos vs.
Ortuzar, 89 Phil. 730, 741; Jerez vs. Nietes,
L-26876, December 27, 1969, 30 SCRA 904, 909; Vda.
de Lopez vs. Lopez, L-23195, September 28, 1970, 35
SCRA 80, 83, where the motion to reopen the intestate
proceeding was filed within the reglementary period).
Moreover, the order for the reopening of the intestate
proceeding was predicated on the false assumption that
there had been no liquidation of the conjugal partnership
and no declaration of heirs. The truth is that the project of
partition and distribution, with final accounting, which
was submitted by the administratrix and approved by the
probate court, contained a liquidation of the conjugal
partnership and a statement as to who were the decedent's
heirs and what were their respective hereditary shares.
That project of partition was a substantial compliance
with articles 179 et sequentia of the Civil Code.
The probate court further erred in entertaining Camilo
Divinagracia's motion to reopen the intestate proceeding.
It erred because that motion involved the determination of
his status as the decedent's spurious child. That question
falls within the exclusive original jurisdiction of the
Juvenile and Domestic Relations Court of Iloilo. Republic
Act No. 4834, which took effect on June 18, 1966,
provides:
SECTION 1. The Juvenile and Domestic Relations court.
— There shall be a Juvenile and Domestic Relations
Court in the Province of Iloilo, for which a judge who
shall possess the same qualifications, enjoy the same
privileges and receive the same salary as judges of courts
of first instance, shall be appointed by the President of the
Philippines, with the consent of the Commission on
Appointments.
Provisions of the Judiciary Act to the contrary
notwithstanding, the court shall have exclusive original
jurisdiction to hear and decide the following cases after
the effectivity of this Act:
xxx xxx xxx
(b) Cases involving custody, guardianship, adoption,
paternity and acknowledgment;
xxx xxx xxx
If any question involving any of the above matters (seven
classes of cases) should arise as an incident in any case
pending in the ordinary courts, said incident shall be
determined in the main case.
The instant case is similar to the Paterno case, supra, and
Bartolome vs. Bartolome, L-23661, December 20, 1967,
21 SCRA 1324, where it was held that cases involving
paternity and acknowledgment fall within the exclusive
original jurisdiction of the Juvenile and Domestic
Relations Court.
The Paterno and Bartolome cases involve provisions of
the Charter of Manila inserted by Republic Act No. 1401
in Republic Act No. 409), which created its Juvenile and
Domestic Relations Court. Those provisions are similar to
the provisions of Republic Act No. 4834 which created
the Juvenile and Domestic Relations Court of Iloilo.
17
It was clarified in the Paterno case that the rule prohibiting
the splitting of a cause of action (Sec. 4, Rule 2, Rules of
Court) is not violated by the holding that the action to
establish plaintiff's filiation as an illegitimate child should
be filed in the Juvenile and Domestic Relations Court and
cannot be joined to the action of the illegitimate child for
partition and recovery of his hereditary share in his
putative father's estate, which is cognizable by the Court
of First Instance:
It is true that under the aforequoted section 1 of Republic
Act No. 4834 a case involving paternity and
acknowledgment may be ventilated as an incident in the
intestate or testate proceeding (See Baluyot vs. Ines
Luciano, L-42215, July 13, 1976). But that legal provision
presupposes that such an administration proceeding is
pending or existing and has not been terminated.
There is a rule that the remedy of a natural child, who has
not been voluntarily acknowledged (Art. 278, Civil Code)
but who can justifiably compel recognition. is either (a) a
separate action against his parent to compel recognition,
or, if the parent is dead, against all the potential heirs who
would be prejudiced by his recognition together with an
action for the enforcement of his rights against his parent
or the latter's heirs; or (b) he may intervene in the
administration proceeding for the settlement of his
deceased parent's estate and there ask for recognition and
at the same time enforce his hereditary rights (Briz vs.
Briz and Remigio, 43 Phil. 763; Suarez vs. Suarez, 43
Phil. 903; Lopez vs. Lopez, 68 Phil. 227; Zaldarriaga vs.
Mariño, L-19566, May 25, 1964, 11 SCRA 48; Uriarte vs.
Court of First Instance of Negros Occidental, L-21938, 33
SCRA 252).
This rule, which may be applied to the spurious child's
action to establish his filiation and assert his hereditary
rights, is good in provinces where there are no Juvenile
and Domestic Relations Court and where the
administration proceeding has not been instituted or is
already closed.
In this connection, a review of the rules governing the
filiation of a spurious child may be useful in ascertaining
the remedy open to Camilo Divinagracia.
The so-called spurious children, or illegitimate children
other than natural children, commonly known as bastards
include adulterous children or those born out of wedlock
to a married woman cohabiting with a man other than her
husband or to a married woman cohabiting with a woman
other than his wife. They are entitled to support and
successional rights (Art. 287, Civil Code). But their
filiation must be duly proven (Ibid, Art. 887).
How should their filiation be proven? Article 289 of the
Civil Code allows the investigation of the paternity or
maternity of spurious children under the circumstances
specified in articles 283 and 284 of the Civil Code. The
implication is that the rules on compulsory recognition of
natural children are applicable to spurious children
(Pactor vs. Pestaño, 107 Phil. 685; Edades vs. Edades,
infra; Reyes vs. Zuzuarregui 102 Phil. 346, 354).
Spurious children should not be in a better position than
natural children. The rules on proof of filiation of natural
children or the rules on voluntary and compulsory
acknowledgment for natural children may be applied to
spurious children (Paulino and Nieto vs. Pauline, 113
Phil. 697, 700).
That does not mean that spurious children should be
acknowledged, as that term is used with respect to natural
children. What is simply meant is that the grounds or
instances for the acknowledgment of natural children are
utilized to establish the filiation of spurious children
(Barles vs. Ponce Enrile, 109 Phil. 522).
A spurious child may prove his filiation by means of a
record of birth, a will, a statement before a court of record,
or in any authentic writing. These are the modes of
voluntary recognition of natural children (Art. 278, Civil
Code).
In case there is no evidence on the voluntary recognition
of the spurious child, then his filiation may be established
by means of the circumstances or grounds for compulsory
recognition prescribed in the aforementioned articles 283
and 284 Noble vs. Noble, 64 O.G. 1753; Edades vs.
Edades, 99 Phil. 675; Sotto vs. Sotto, L-20921, May 24,
1966, 17 SCRA 243; Republic vs. Workmen's
Compensation Commission, L-19946, February 26, 1965,
13 SCRA 272; Galeon vs. Galeon, L-30380, February 28,
1973, 49 SCRA 516; Paterno vs. Paterno, supra).
The prescriptive period for filing the action for
compulsory recognition in the case of natural children, as
provided for in article 285 of the Civil Code, applies to
spurious children (Vda. de Clemeña vs. Clemeña, L-
24845, August 22, 1968, 24 SCRA 720; Velez vs. Velez,
L-28873, July 31, 1973, 52 SCRA 190; Barles vs. Ponce
Enrile, supra).
In the instant case, Camilo Divinagracia did not disclose
whether he has any evidence of voluntary recognition of
18
his filiation. There is no allegation in his motion that
would sustain his claim for compulsory acknowledgment
of his filiation. (Cf. Pactor vs. Pestaño, 107 Phil. 685).
In view of the foregoing considerations, the probate
court's order of October 18, 1975, reopening the intestate
proceeding for the settlement of the estate of Feliciano
Divinagracia, is set aside. Costs against private
respondent.
VICENTE TAN, petitioner, vs. CITY OF DAVAO,
respondent.
This 26-year old case involves what is probably now a
valuable lot in the City of Davao whose owner left for
China with her entire family in 1923 and never returned.
Like all such estates facing escheat proceedings, it is fair
game for poseurs and fakers claiming to be the missing
heir of the deceased owner.
The spouses Cornelia Pizarro and Baltazar Garcia, during
their lifetime, were residents of Davao City. As they were
childless, they adopted a three-year old girl whom they
named Dominga Garcia and brought up as their own. At
the age of nineteen years, Dominga Garcia married a
Chinaman, Tan Seng alias Seng Yap, with whom she had
three children, named Vicente, who was born in 1916,
Mariano who was born in 1918, and Luis who was born
in 1921. In 1923, Dominga Garcia and her three children
emigrated to Canton, China. In less than a year, Tan Seng
followed his family to his country of origin.
According to the petitioner, Dominga Garcia died
intestate in 1955 (Extra-judicial Settlement of the Estate
of Dominga Garcia dated May 27, 1966, p. 8, Rollo). She
left in the Philippines a 1,966-square-meter lot on
Claveria Street, Townsite of Davao, District of Davao,
registered in her name under T.C.T. No. 296 (T-2774) of
the Registry of Deeds of Davao City. Since her departure
for China with her family, neither she, nor her husband,
nor any of their children has returned to the Philippines to
claim the lot.
Dominga's adoptive parent, Cornelia Pizarro, died in May
1936. In 1948, her nephew, Ramon Pizarro, occupied a
part of Dominga's property and collected the rentals from
the owners of other houses occupying the land. Another
nephew of Cornelia, Segundo Reyes, in a burst of civic
spirit, informed the Solicitor General about the property.
The City Fiscal and NBI agents, Antonio Gonzaga and
Felix Valencia, investigated Segundo Reyes, Ramon
Pizarro and Aurelio Pizarro regarding the whereabouts of
Dominga Garcia, Tan Seng, and their children.
During the investigation, Ramon Pizarro alleged that
Vicenta Tan, daughter of Dominga, was married and
living in Bacolod City, but he did not know her exact
address. Aurelio Pizarro, on the other hand, controverted
that statement because as far as he knew, Vicenta Tan left
for China with her mother and brothers in 1923.
On September 12,1962, the City of Davao filed a petition
in the Court of First Instance of Davao, Branch I (Special
Civil Case No. 1220) to declare Dominga Garcia's land
escheated in its favor. It alleged that Dominga Garcia and
her children are presumed to be dead and since Dominga
Garcia left no heir person by law entitled to inherit her
estate, the same should be escheated pursuant to Rule 92
of the Rules of Court (pp. 1-5, Record on Appeal).
The court set the petition for hearing and directed the City
to cause (as it did ) the publication of its petition in the
'Mindanao Times," a newspaper of general circulation in
the city and province of Davao, and in the Official
Gazette, once a week for six (6) consecutive weeks (pp.
6-8, Record on Appeal).
Ramon Pizarro opposed the escheat petition on the ground
that courts are not authorized to declare that a person is
presumed to be dead and that Dominga Garcia's being in
Red China is not a sufficient ground to deprive her of her
property by escheat proceedings (pp. 8-9, Record on
Appeal).
On June 15, 1966, Pizarro filed a motion to dismiss the
escheat petition (pp. 13-15, Record on Appeal), but he
withdrew his motion three days later (p. 15, Record on
Appeal).
Numerous incidents delayed the trial of the case, among
them: (1) the court's order denying the oppositor's motion
to dismiss the escheat petition, which reached the Court
of Appeals and the Supreme Court (L-38423); (2) the
court's order requiring Pizarro to render an accounting
which also reached the Court of Appeals and Supreme
Court (L-38642); and (3) the court's order for receivership
which reached the Court of Appeals and the Supreme
Court (L-39224).
At the trial, the petitioner's evidence on the Identity of the
land; the fact that the registered owner, Dominga Garcia,
and her children and husband had left for China in 1923;
that she died intestate in 1955; and that none of her heirs
is found in the Philippines, were not seriously disputed.
19
The controversy centers on whether Dominga's daughter,
Vicenta Tan, is alive in China or in Hongkong, as alleged
by Pizarro who tried to prove it through: (1) supposed
pictures of the missing heir (Exhs. 1, 2, and 3); (2) an
Extrajudicial Settlement and Adjudication of Dominga's
Estate (Exh. 19, pp. 8-9, Rollo) allegedly executed by
Vicenta in Hongkong on May 27, 1966; and (3) a Special
Power of Attorney (Exh. 20) that she supposedly signed
(thumbmarked) in favor of Pizarro on the same date also
in Hongkong (pp. 53-56, Rollo).
Pizarro testified that his aunt Cornelia Pizarro gave him
the papers pertaining to the land and told him to take care
of it before she died in 1936.
On cross-examination, he alleged that in 1960 he met
Vicenta on Claveria Street, that she told him to take care
of her property because she would come again later; that
they met again in Hongkong in 1966; and he recognized
her from her pictures (Exhs. 1, 2, and 3).
On still another occasion, Pizarro testified that the title of
the land was given to him by Dominga Garcia when she
and her husband returned to Davao before the war and
borrowed money from him for their trip to China.
Pizarro's witness, a septuagenarian Arsenio Suazo, who
claimed to be a distant relative of Cornelia Pizarro and
Dominga Garcia, testified that the last time he saw
Vicenta was when she was 5 years old. He Identified her
as the woman with buck teeth in the pictures (Exhs. 1, 2
and 3) because he remembered that, even as a 5-year-old,
"her teeth were not in good form and were somewhat
protruding."
Another witness, Ramon Regino, a nephew of Pizarro,
calculated that Vicenta was 7 years old when he last saw
her. He testified that the pictures (Exhs. 1, 2, and 3) bore
a similarity to Vicenta whose face, he recalled, was
"somewhat long."
The trial court found Suazos testimony "not credible" or
"improbable" for it was impossible for him to Identify the
woman in the picture as Vicenta on the basis only of his
recollection that she had protruding teeth as a child,
because, the court argued, "it is a matter of common
knowledge ... that the teeth of children of five years of age
are temporary, and are replaced by permanent teeth at the
age of seven or eight years."
(p. 185, Record on Appeal.)
The court also found Regino's testimony "Incredible,
patently incredible" (p. 185, Record on Appeal).
Neither did the trial court believe Pizarro's allegation that
the pictures, Exhibits 1, 2, and 3, were those of Vicenta
Tan. The court observed that the woman in the picture,
who supposedly made the Extrajudicial Settlement and
Special Power of Attorney (Exhs. 19 and 20) did not know
how to sign her name, thus contradicting Pizarro's
statement that Vicente, at age 7, already knew how to
write and that when they met in Hongkong, they
conversed in Chavacano and in English. On the other
hand, the court pointed out, since Vicenta left for China
in 1923 when she was only 7 years old, and as she grew
up in China, it could not be true that she spoke Chavacano
and could write in the Roman alphabet
(p. 194, Record on Appeal).
The Court did not believe that Pizarro and Vicenta met in
Davao in 1960, for if that were true, he did not need to be
shown the scar on Vicenta's thigh in order for him to
recognize her. Furthermore, it is improbable that a woman
whom he had not seen for 43 years would bare her thigh
to him. The trial court pointed out in its decision that:
... There is no proof that Vicenta Tan, daughter of
Dominga Garcia, was the one who in fact sent the picture
other than the claim of Pizarro that he received the same
from her. Likewise, there is no proof that the woman in
Exhibit I is Vicenta Tan, daughter of Dominga Garcia,
except the testimony of Pizarro that he received the
picture from her. An impostor might have sent her picture
to Pizarro foist herself upon him as the daughter of
Dominga Garcia. And this is the woman whom Pizarro
met in Hongkong (p. 196, Record on Appeal.)
The trial court found that Pizarro's testimonies "ring with
untruthfulness; they are replete with inconsistencies" (p.
17, Record on Appeal) and the witnesses who
corroborated him were "unworthy of belief" (p. 198,
Record on Appeal).
On March 23, 1972, the trial court rendered judgment
whose dispositive portion is quoted below:
WHEREFORE, the land in the name of Dominga Garcia
covered by Transfer Certificate of Title No. 296 (T-2774)
of the Register of Deeds of Davao City, as well as the
rentals thereon, shall escheat and the same are hereby
assigned to the City of Davao for the benefit of public
schools and public charitable institutions and centers in
the said city.
Ramon Pizarro shall make an accounting of the income
he collected from himself and those who are occupying
20
the land from the time he took possession of it in 1936
when his aunt Cornelia Pizarro died until the City of
Davao takes possession of the property and shall deliver
the same to the city.
Ramon Pizarro shall likewise deliver to the City of Davao
the owner's duplicate of Transfer Certificate of Title No.
296 (T-2774) which is in his possession, without costs. (p.
198, Record on Appeal.)
Pizarro appealed to the Court of Appeals (CA-G.R. No.
L-51786-R). He passed away on June 16, 1975 during the
pendency of the appeal.
On August 19,1975, a certain Luis Tan, alias Chen Yek
An claiming to be the long missing son of Dominga
Garcia, filed a motion for intervention in the Court of
Appeals. He alleged that he had been living in mainland
China; that he failed to come to the trial because of a
government prohibition barring his entry to the
Philippines; that after diplomatic relations with China
were restored, he returned to this country to oppose the
escheat proceedings on the properties of his mother,
Dominga Garcia.
The City of Davao opposed the motion for intervention
for tardiness. The Court of Appeals disallowed it because
the trial had long been terminated, and the intervention, if
allowed, would unduly delay the adjudication of the rights
of the original parties
(p. 26, Rollo).
On April 2, 1976, the Court of Appeals affirmed the
appealed decision of the trial court. Vicenta Tan and/or
her attorney-in-fact, Ramon Pizarro, appealed by petition
for certiorari to this Court, alleging that the Court of
Appeals erred:
1. in ruling that the city of Davao had personality to
file the escheat petition; and
2. in declaring that petitioner Vicenta Tan may be
presumed dead.
We find no merit in the petition for review.
With respect to the argument that only the Republic of the
Philippines, represented by the Solicitor-General, may
file the escheat petition under Section 1, Rule 91 of the
Revised (1964) Rules of Court, the Appellate Court
correctly ruled that the case did not come under Rule 91
because the petition was filed on September 12,1962,
when the applicable rule was still Rule 92 of the 1940
Rules of Court which provided:
Sec. 1. When and by whom,petition filed.—When a
person dies intestate, seized of real or personal property
in the Philippines, leaving no heirs or person by law
entitled to the same, the municipality or city where the
deceased last resided, if he resided in the Philippines, or
the municipality or city in which he had estate if he
resided out of the Philippines, may file a petition in the
court of first instance of the province setting forth the
facts, and praying that the estate of the deceased be
declared escheated. (Emphasis supplied.)
Rule 91 of the Revised rules of Court, which provides that
only the Republic of the Philippines, through the Solicitor
General, may commence escheat proceedings, did not
take effect until January 1, 1964. Although the escheat
proceedings were still pending then, the Revised Rules of
Court could not be applied to the petition because to do so
would work injustice to the City of Davao. Rule 144 of
the 1964 Rules of Court contains this "saving" clause:
These rules shall take effect on January 1, 1964. They
shall govern all cases brought after they take effect, and
also all further proceedings in cases pending, except to the
extent that in the opinion of the court, their application
would not be feasible or would work injustice, in which
event the former procedure shall apply.
The Court of Appeals should have dismissed the appeal
of Vicenta Tan and Ramon Pizarro earlier because the
records show that Vicenta was never a party in the escheat
proceedings. The trial court's order dated February 4,
1972 ordering that she be substituted for Ramon Pizarro
as oppositor (p. 16, Record on Appeal) was set aside by
the same court in its Order of March 23, 1972 (p. 178,
Record on Appeal) which was not appealed.
Vicenta Tan, if she still exists, was never served with
summons extra-territorially under Section 17, Rule 14 of
the Rules of Court. She never appeared in the trial court
by herself, or counsel and never filed a pleading therein,
hence, she never submitted to the court's jurisdiction.
Every action must be prosecuted and defended in the
name of the real party-in-interest (Sec. 2, Rule 3, Rules of
Court; Ferrer vs. Villamor, 60 SCRA 106; Filipinas
Industrial Corp. vs. San Diego, 23 SCRA 706; 1 Moran
144). Ramon Pizarro, the alleged administrator of
Dominga Garcia's property, was not a real party in
interest. He had no personality to oppose the escheat
petition.
21
The Court of Appeals did not err in affirming the trial
court's ruling that Dominga Garcia and her heirs may be
presumed dead in the escheat proceedings as they are, in
effect, proceedings to settle her estate. Indeed, while a
petition instituted for the sole purpose of securing a
judicial declaration that a person is presumptively dead
cannot be entertained if that were the only question or
matter involved in the case, the courts are not barred from
declaring an absentee presumptively dead as an incident
of, or in connection with, an action or proceeding for the
settlement of the intestate estate of such absentee. Thus
ruled this Court in In re Szatraw 81 Phil 461:
... This presumption ... may arise and be invoked and trade
in a case, either in an action or in a special proceeding,
which is tried or heard by, and submitted for-decision to,
competent court. Independently of such an action or
special proceeding, the presumption of death cannot be
invoked, nor can it be made the subject of an action or
special proceeding. (Emphasis added.)
Direct evidence proving that Dominga Garcia, her
husband and her children are in fact dead, is not
necessary. It may be presumed under Article 390 of the
New Civil Code which provides:
ART. 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall
be presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the purpose
of opening his succession till after an absence of ten years
...
The Court of Appeals found that the City of Davao was
able to prove the facts from which the presumption arises.
It said:
... Its evidence preponderantly shows that in 1923
Dominga Garcia and her family left the Philippines bound
for China. Since then until the instant petition was filed
on September 12, 1962, a period covering about 39 years,
nothing had been heard about them. It is not known
whether all or any of them is still alive at present. No heir,
devisee or any other person entitled to the estate of
Dominga Garcia has appeared and claimed the same up to
this time except Luis Tan whose status as alleged heir has
still to be proven in the proper court.
The assertion of appellant Pizarro that in 1960 he met and
talked with Vicenta Tan in Claveria, Davao City, before
she went to China, and again in 1966, when he went to
Hongkong, was not believed by the court below. After
assessing and evaluating the evidence, we find no
sufficient cause to disturb the conclusion of the trial court
made on a finding of fact based on conflicting testimony
and depending largely upon the credibility of witnesses
who testified before it. In our review of the evidence, we
have not come across any material fact or circumstance
which the court a quo has overlooked and failed to
consider, or has misunderstood and misapplied, and
which if properly appreciated and accurately were held
would change the result of this litigation.
For one thing, if it is true that Vicenta Tan left the
Philippines only in 1960, as oppositor Pizarro would like
the court to believe, it has not been explained why he
omitted to secure copies of her departure papers from
either the Department of Foreign Affairs, the Bureau of
Immigration or the former Chinese Embassy, and present
them to the court to establish her existence as late as 1960.
For another, if it is also true that he met her in Hongkong
in 1966, we are at a loss why he failed to arrange for her
return to the Philippines. We do not believe it would have
been difficult to do so, considering that she had been a
resident of this country for more than 40 years and had
been absent for only about six years and that her return
was imperative on account of a court action against her
property which required her personal presence. But even
if this were impossible, oppositor Pizarro would not be
left without any other remedy. He could have arranged for
the taking of her deposition in Hongkong by means of
letters rogatory under Sections 11 and 12, Rule 24 of the
Revised Rules of Court, in the same manner that,
according to him, he arranged their meeting in the Crown
Colony sometime in 1966.
The unexplained failure of oppositor Pizarro to take
advantage of any of these remedies available to him
heavily tilts the scale against the credibility of his claim.
(pp. 30-31, Rollo.)
These factual findings of the Court of Appeals are binding
on Us. They may not be disturbed in this petition for
review where only legal questions may be raised
(Sec. 2, Rule 45).
WHEREFORE, finding no reversible error in the decision
of the Court of Appeals in CA-G.R. No. 51786-R, the
petition for review is denied for lack of merit.
22
MELECIO R. DOMINGO, as Commissioner of
Internal Revenue, petitioner,
vs.
HON. LORENZO C. GARLITOS, in his capacity as
Judge of the Court of First Instance of Leyte,
and SIMEONA K. PRICE, as Administratrix of the
Intestate Estate of the late Walter Scott Price,
respondents.
This is a petition for certiorari and mandamus against the
Judge of the Court of First Instance of Leyte, Ron.
Lorenzo C. Garlitos, presiding, seeking to annul certain
orders of the court and for an order in this Court directing
the respondent court below to execute the judgment in
favor of the Government against the estate of Walter Scott
Price for internal revenue taxes.
It appears that in Melecio R. Domingo vs. Hon. Judge S.
C. Moscoso, G.R. No. L-14674, January 30, 1960, this
Court declared as final and executory the order for the
payment by the estate of the estate and inheritance taxes,
charges and penalties, amounting to P40,058.55, issued
by the Court of First Instance of Leyte in, special
proceedings No. 14 entitled "In the matter of the Intestate
Estate of the Late Walter Scott Price." In order to enforce
the claims against the estate the fiscal presented a petition
dated June 21, 1961, to the court below for the execution
of the judgment. The petition was, however, denied by the
court which held that the execution is not justifiable as the
Government is indebted to the estate under administration
in the amount of P262,200. The orders of the court below
dated August 20, 1960 and September 28, 1960,
respectively, are as follows:
Atty. Benedicto submitted a copy of the contract between
Mrs. Simeona K. Price, Administratrix of the estate of her
late husband Walter Scott Price and Director Zoilo
Castrillo of the Bureau of Lands dated September 19,
1956 and acknowledged before Notary Public Salvador
V. Esguerra, legal adviser in Malacañang to Executive
Secretary De Leon dated December 14, 1956, the note of
His Excellency, Pres. Carlos P. Garcia, to Director
Castrillo dated August 2, 1958, directing the latter to pay
to Mrs. Price the sum ofP368,140.00, and an extract of
page 765 of Republic Act No. 2700 appropriating the sum
of P262.200.00 for the payment to the Leyte Cadastral
Survey, Inc., represented by the administratrix Simeona
K. Price, as directed in the above note of the President.
Considering these facts, the Court orders that the payment
of inheritance taxes in the sum of P40,058.55 due the
Collector of Internal Revenue as ordered paid by this
Court on July 5, 1960 in accordance with the order of the
Supreme Court promulgated July 30, 1960 in G.R. No. L-
14674, be deducted from the amount of P262,200.00 due
and payable to the Administratrix Simeona K. Price, in
this estate, the balance to be paid by the Government to
her without further delay. (Order of August 20, 1960)
The Court has nothing further to add to its order dated
August 20, 1960 and it orders that the payment of the
claim of the Collector of Internal Revenue be deferred
until the Government shall have paid its accounts to the
administratrix herein amounting to P262,200.00. It may
not be amiss to repeat that it is only fair for the
Government, as a debtor, to its accounts to its citizens-
creditors before it can insist in the prompt payment of the
latter's account to it, specially taking into consideration
that the amount due to the Government draws interests
while the credit due to the present state does not accrue
any interest. (Order of September 28, 1960)
The petition to set aside the above orders of the court
below and for the execution of the claim of the
Government against the estate must be denied for lack of
merit. The ordinary procedure by which to settle claims
of indebtedness against the estate of a deceased person, as
an inheritance tax, is for the claimant to present a claim
before the probate court so that said court may order the
administrator to pay the amount thereof. To such effect is
the decision of this Court in Aldamiz vs. Judge of the
Court of First Instance of Mindoro, G.R. No. L-2360,
Dec. 29, 1949, thus:
. . . a writ of execution is not the proper procedure allowed
by the Rules of Court for the payment of debts and
expenses of administration. The proper procedure is for
the court to order the sale of personal estate or the sale or
mortgage of real property of the deceased and all debts or
expenses of administrator and with the written notice to
all the heirs legatees and devisees residing in the
Philippines, according to Rule 89, section 3, and Rule 90,
section 2. And when sale or mortgage of real estate is to
be made, the regulations contained in Rule 90, section 7,
should be complied with.1äwphï1.ñët
Execution may issue only where the devisees, legatees or
heirs have entered into possession of their respective
portions in the estate prior to settlement and payment of
the debts and expenses of administration and it is later
ascertained that there are such debts and expenses to be
paid, in which case "the court having jurisdiction of the
estate may, by order for that purpose, after hearing, settle
23
the amount of their several liabilities, and order how much
and in what manner each person shall contribute, and may
issue execution if circumstances require" (Rule 89,
section 6; see also Rule 74, Section 4; Emphasis
supplied.) And this is not the instant case.
The legal basis for such a procedure is the fact that in the
testate or intestate proceedings to settle the estate of a
deceased person, the properties belonging to the estate are
under the jurisdiction of the court and such jurisdiction
continues until said properties have been distributed
among the heirs entitled thereto. During the pendency of
the proceedings all the estate is in custodia legis and the
proper procedure is not to allow the sheriff, in case of the
court judgment, to seize the properties but to ask the court
for an order to require the administrator to pay the amount
due from the estate and required to be paid.
Another ground for denying the petition of the provincial
fiscal is the fact that the court having jurisdiction of the
estate had found that the claim of the estate against the
Government has been recognized and an amount of
P262,200 has already been appropriated for the purpose
by a corresponding law (Rep. Act No. 2700). Under the
above circumstances, both the claim of the Government
for inheritance taxes and the claim of the intestate for
services rendered have already become overdue and
demandable is well as fully liquidated. Compensation,
therefore, takes place by operation of law, in accordance
with the provisions of Articles 1279 and 1290 of the Civil
Code, and both debts are extinguished to the concurrent
amount, thus:
ART. 1200. When all the requisites mentioned in article
1279 are present, compensation takes effect by operation
of law, and extinguished both debts to the concurrent
amount, eventhough the creditors and debtors are not
aware of the compensation.
It is clear, therefore, that the petitioner has no clear right
to execute the judgment for taxes against the estate of the
deceased Walter Scott Price. Furthermore, the petition for
certiorari and mandamus is not the proper remedy for the
petitioner. Appeal is the remedy.
MUNICIPAL COUNCIL OF SAN PEDRO,
LAGUNA V. COLEGIO DE SAN JOSE
FACTS:
The Municipality of San Pedro, Laguna filed in the CFI a
petition claiming the Hacienda de San Pedro Tunasan by
the right of Escheat. Colegio de San Jose, claiming to be
the exclusive owner of the said hacienda, assailed the
petition upon the grounds that the petition does not allege
sufficient facts to entitle the applicants to the remedy
prayed for. Carlos Young, claiming to be a lessee of the
hacienda under a contract legally entered with Coelegio
de San Jose, also intervened in the case. Municipal
Council of San Pedro, Laguna objected to the appearance
and intervention of CdSJ and Carlos Young but such
objection was overruled. Furthermore the lower court
dismissed the petition filed for by Municipal Council of
San Pedro.
ISSUE: W/N the petition for escheats should be
dismissed?
RULING: YES. According to Sec. 750 of the Code of
Civil Procedure (now Sec 1 of Rule 91), the essential facts
which should be alleged in the petition, which are
jurisdictional because they confer jurisdiction upon the
CFI are:
1. That a person died intestate or without leaving any will,
2. That he has left real or personal property and he was
the owner thereof,
3. That he has not left any heir or person by law entitled
to the property, and
4. That the one who applies for the escheat is the
municipality where deceased has his last residence or in
case he should have no residence in the country, the
municipality where the property is situated.
Sec. 751 (now Sec 3 of Rule 91) provides that
after the publications and trial, if the court finds that the
deceased is in fact the owner of real and personal property
situated in the country and has not left any heir or other
person entitled there to, it may order, after payment of
debts and other legal expenses, the escheat and in such
case, it shall adjudicate the personal property to the
municipality where the deceased had his last residence
and the real property to the municipality/ies where they
are situated.
Escheat is a proceeding whereby the real and personal
property of a deceased person become the property of the
State upon his death without leaving any will or legal
heirs. It is not an ordinary action but a special proceeding.
The proceeding should be commenced by a petition and
not by a complaint.
In a special proceeding for Escheat under section
750to 752 (now sec 1 to 3 of Rule 91), the petitioner is not
24
the sole and exclusive interested party. Any person
alleging to have a direct right or Interest in the property
sought to be escheated is likewise an interested and
necessary party and may appear and oppose the petition
for escheat.
When a petition for escheat does not state facts
which entitle the petitioner to the remedy prayed for and
even admitting them hypothetically, it is clear that there
is no ground for the court to proceed to the Inquisition
provided by law, an interested party should not be
disallowed from filing a motion to dismiss the petition
which is untenable from all standpoint. And when the
motion to dismiss is entertained upon this ground the
petition may be dismissed unconditionally.
In this case, Colegio de San Jose and Carlos
Young had a right to intervene as an alleged exclusive
owner and a lessee of the property respectively.
The Municipal base its right to escheat on the fact
that the Hacienda de San Pedro Tunasan, temporal
property of the Father of the Society of Jesus, were
confiscated by the order of the King of Spain. From the
moment it was confiscated, it became the property of the
commonwealth of the Philippines. Given this fact, it is
evident that the Municipality cannot claim that the same
be escheated to them, because it is no longer the case of
real property owned by a deceased person who has not left
any person which may legally claim it (2nd requirement
lacking).

25