There are however, cases when this wish of the testator can not be followed because of

considerations superior to the mere will of the testator. Thus, when the property given
must be reduced as inofficious collation will take place.
The express provision by the testator exempting an heir from collation, as well as the
repudiation by a compulsory heir of his inheritance, does not do away with the fact that
he has actually received property or value from the decedent and thus diminished the
latters estate. He must, therefore, bring such property or value to the mass of the estate.
But since the testator has expressed his will that the donation should not constitute an
advance on the legitime, or because the heir loses his right to such legitime by reason of
his repudiation, such heir-donee is placed in the position of a stranger; so that, the
donation which he has received, instead of being charged against his legitime as provided
for by article 909, will have to be charged against the free portion.
MOTION TO STRIKE OUT
The above provision requires the statement of the ultimate facts to be made in a
methodical and logical form. This is for the sake of clarity. It requires, further that such
statement be plain, concise and direct. Simple words should, therefore, be used and
verbose and prolix statements, avoided. The statement must be stated directly and
positively and not argumentatively, inferentially, or in a conjectural or qualified form.1
Ultimate facts defined The term ultimate facts as used in this provision, means the
essential facts constituting the plaintiffs cause of action. A fact is essential if it cannot be
stricken out without leaving the statement of the cause of action insufficient. Accordingly,
evidentiary facts, or those which go to prove the case, may be essential at the trial, but
not in the pleading of a cause of action. 2 The evidentiary facts, if alleged in the complaint,
ma be stricken out on motion.3
It is correct to say that possession by one co-owner (trustee) is not deemed adverse to the others. In
this sense, an action to compel partition will lie at any time and does not prescribe. It is, however, not
legally correct to say that by virtue of the imprescriptibility of an action for partition, prescription as a
mode of acquiring title, can never be invoked, or in the present case, that Maria, as a co-owner can
never acquire the property by prescription. 4

An action for partition does not prescribe. Article 403 of the Old Civil Code, now Article
497, provides that the assignees of the co-owners may take part in the partition of the
common property, and Article 400 of the Old Code, now Article 494 provides that each
co-owner may demand at any time the partition of the common property, a provision
which implies that the action to demand partition is imprescriptible or cannot be barred
by laches (Budlong vs. Pondoc, 79 SCRA 24 [1977]). An action for partition does not lie
1

Moran, Coments on the Rules of Court, 1963 Ed., Vol. I, p. 260, citing Sutherland, Code Pleading, Practice
and Forms, Sec. 89; Alzua v. Johnson, 21 Phil. 308, 381; United States v. Master of S.S. Tean. 28 Phil.
188, 49, C.J. 89.
2
Corporacion de PP. Agustinos Recoletos v. Crisostomo, 32 Phil. 427, Alzua v. Johnson, 21 Phil. 308, 381;
Bank of the Philippines v. Coconut Oil., et al., 44 Phil. 618.
3
Corporacion de PP. Agustinos Recoletos v. Crisostomo, 32 Phil. 427
4
Bicarme vs. CA, G.R. No. L-51914, June 6, 1990.

except when the co-ownership is properly repudiated by the co-owner (Jardin vs.
Hollasco, 117 SCRA 532 [1982]).5

Del Banco vs. Intermediate Appellate Court, G.R. No. L-72694, December 1, 1987, 156 SCRA 55, 67.