Compilation of Cases in Succession - When Succession Occurs

COMPILATION OF CASES IN LAWS OF SUCCESSION
Occurs (Art 777)

G.R. No. L-5064
: When Succession
February 27, 1953
BIENVENIDO A. IBARLE, plaintiff-appellant,

vs.
ESPERANZA M. PO, defendant-appellant.
Quirico del Mar for appellant.
Daniel P. Tumulak and Conchita F. Miel appellee.
TUASON, J.:
This action commenced in the Court of First Instance of Cebu to annul a
deed of sale conveying to the defendant, in consideration of P1,700, one
undivided half of a parcel of land which previously had been sold, along
with the other half, by the same vendor to the plaintiff's grantors.
judgment was against the plaintiff.
The case was submitted for decision upon an agreed statement of facts,
the pertinent parts of which are thus summarized in the appealed
decision:
1st. That Leonard j. Winstanley and Catalina Navarro were
husband and wife, the former having died on June 6, 1946 leaving
heir the surviving spouse and some minor children;
2nd. hat upon the death of L.J. Winstanley, he left a parcel of land
described under Transfer Certificate of title No. 2391 of the Registry
of Deeds of the Province of Cebu;
3rd. That the above mentioned property was a conjugal property;
4th. That on April 15, 1946, the surviving spouse Catalina
Navarro Vda. de Winstanley sold the entire parcel of land to the
spouses Maria Canoy, alleging among other things, that she needed
money for the support of her children;
5th. That on May 24, 1947, the spouses Maria Canoy and Roberto
Canoy sold the same parcel of land to the plaintiff in this case
named Bienvenido A. Ebarle;
6th. That the two deeds of sale referred to above were not
registered and have never been registered up to the date;
Compiled by: aeejercito-beck
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: When Succession
7th. That on January 17, 1948 surviving spouse Catalina Navarro

Vda. de Winstanley, after her appointment as guardian of her
children by this court (Special proceeding no. 212-R) sold one-half of
the land mentioned above to Esperanza M. Po, defendant in the
instant case, which portion belongs to the children of the above
named spouses.
As stated by the trial Judge, the sole question for determination is the
validity of the sale to Esperanza M. Po, the last purchaser. This question in
turn depends upon the validity of the prior ale to Maria Canoy and Roberto
Canoy.
Article 657 of the old Civil Code provides: "The rights to the succession of
a person are transmitted from the moment of his death." in a slightly
different language, this article is incorporated in the new Civil Code as
article 777.
Manresa, commending on article 657 of the Civil Code of Spain, says:
The moment of death is the determining factor when the heirs
acquire a definite right to the inheritance, whether such right be
pure or contingent. It is immaterial whether a short or long period of
time lapses between the death of the predecessor and the entry
into possession of the property of the inheritance because the right
is always deemed to be retroactive from the moment of death. (5
Manresa, 317.)
The above provision and comment make it clear that when Catalina
Navarro Vda. de Winstanley sold the entire parcel to the Canoy spouses,
one-half of it already belonged to the seller's children. No formal or
judicial declaration being needed to confirm the children's title, it follows
that the first sale was null and void in so far as it included the children's
share.
On the other hand, the sale to the defendant having been made by
authority of the competent court was undeniably legal and effective. The
fact that it has not been recorded is of no consequence. If registration
were necessary, still the non-registration would not avail the plaintiff
because it was due to no other cause than his own opposition.
The decision will be affirmed subject to the reservation, made in said
decision, of the right of the plaintitff and/or the Canoy spouses to bring
such action against Catalina Navarro Vda. de Winstanley as may be
appropriate for such damages as they may have incurred by reason of the
voiding of the sale in their favor.
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: When Succession
Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo,

Bautista Angelo and Labrador, JJ., concur.
G.R. No. L-10474
March 29, 1916
FRANCISCO OSORIO Y GARCIA, plaintiff-appellee,

vs.
SOLEDAD OSORIO and VICENTE FERNANDEZ, defendants-appellants.
Francisco Villanueva for appellants.
Jose I. Pinzon for appellee.
TORRES, J.:
An appeal by bill of exceptions, raised by counsel for defendants from the
judgment of September 10, 1914, in which the Court of First Instance of
Cavite held that plaintiff, Francisco Osorio y Garcia, is a natural,
recognized son of Francisco Osorio y Reyes and ordered that the
defendant spouses recognize plaintiff as a natural son of Francisco Osorio
y Reyes, duly entitled to share in the latter's estate in the proportion
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: When Succession
determined by law, and to the enjoyment of such other rights as are

inherent in his said status of natural, recognized son; with the costs
against defendants.
On January 29, 1914, counsel for Francisco Osorio y Garcia filed a written
complaint in the Court of First Instance of Cavite, in which he alleged that
plaintiff is a natural son of one Francisco Osorio y Reyes who died in 1896;
that said Francisco Osorio y Garcia has been in continuous possession of
the status of natural son of said Osorio y Reyes, as proven by direct acts
of the latter and of his family; that the defendant Soledad Osorio is the
lawful daughter and lawful heir of said Francisco Osorio y Reyes and is
married to Vicente T. Fernandez, for which reason the latter was included
as defendant; and that said Francisco Osorio y Reyes left at his death real
and personal property, specified and described in the fourth paragraph of
the complaint and now in the possession of Soledad Osorio. Said counsel
petitioned that as plaintiff was a minor Joaquin Luciano be appointed by
the court as his curator ad litem; that the defendant Soledad Osorio be
ordered to recognize plaintiff as a natural son of said Francisco Osorio y
Reyes, deceased, and as entitled to share in his father's estate; and,
furthermore, that said defendant be ordered to furnish subsistence to
plaintiff in such amount as the court might deem proper to fix.
The demurrer interposed by counsel for defendants to the aforementioned
complaint having been overruled, the latter answered denying each and
all the facts therein contained, and in special defense alleged that
Francisco Osorio y Reyes during his lifetime did not perform any act
tending to show his intention to recognize plaintiff, Francisco Osorio, as
his natural son; that in no public document, will, or instrument whatever
unquestionably executed by Francisco Osorio y Reyes, had the latter
recognized plaintiff as his natural son, wherefore the defendant Soledad
Osorio is not obliged to recognize him as such. Said counsel therefore
prayed the court to render judgment absolving defendants from the
complaint, with the costs against plaintiff. After the hearing and the
introduction of evidence by both parties, the judgment aforementioned
was rendered to which defendants excepted and by written motion moved
for a reopening of the case and a new trial. This motion was overruled
and, the proper bill of exceptions having been filed, the same was
approved and forwarded to the clerk of this court.
This case deals with the claim of the minor Francisco Osorio y Garcia to be
recognized as a natural son of Francisco Osorio y Reyes, and we have to
determine whether plaintiff has enjoyed the status of natural son who was
duly recognized by his father during the latter's lifetime.
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Occurs (Art 777)
: When Succession
There is no question in investigating plaintiff's paternity, and we are

confined to deciding whether his father Osorio y Reyes did by his acts
lead his relatives and other persons not of his kin to believe that he
recognized plaintiff as his natural son.
The fact is not to be gainsaid that after Francisco Osorio y Reyes, the
father of the defendant Soledad Osorio, became a widower, he
maintained intimate relations with Consolacion Garcia y Morillo, an
unmarried woman, from which relations the boy Francisco Abdon Osorio y
Garcia was born; therefore, pursuant to article 119 of the Civil Code and
the provisions of General Orders No. 68 of the year 1899, the child
begotten by said widower, Osorio, and the spinster, Consolacion Garcia,
should be reputed to be their natural son and, therefore, as capable of
being legitimized or recognized by his parents (art. 119, Civ. Code).
It is also an unquestionable fact, as evidenced by the baptismal certificate
Exhibit, A, issued and attested by the former acting parish priest of the
pueblo of Cavite, Father Cecilio Damian, and admitted in evidence at the
trial, that on August 13, 1893, the presbyter Pedro Maalac baptized in
the parish of Cavite a boy born 15 days before, named Francisco Abdon,
the natural son of Francisco Osorio y Reyes, a widower, and Maria
Consolacion Garcia y Morrilo, a spinster, the filiation of the baptized child
appearing in a document found in the files of said parish and signed by
said priest and two witnesses.
Tomasa Osorio, a sister of plaintiff's father, corroborated the fact that the
latter, her brother, while living, supported plaintiff and plaintiff's mother;
that she and her parents respectively considered plaintiff to be their
nephew and grandson; that witness considered plaintiff's mother to be her
sister-in-law; and that plaintiff, after the death of his father Francisco
Osorio y Reyes, lived in the house of his paternal grandparents and the
latter had supported him and provided him with all the necessities of life.
Plaintiff's own grandfather, Antonio Osorio, recognized him as such
natural, recognized son of Francisco Osorio y Reyes, and, to make his
filiation more manifest, bequeathed a part of his property to him, making
the following provision in his will, probated as case No. 456 of the Court of
First Instance of Cavite:
I also leave to my grandson, Francisco Osorio y Garcia, a natural son
of my son Francisco Osorio, deceased, the property . . . . (described
in the will, Exhibit B.)
The acts performed by Francisco Osorio are unimpeachable proof that,
from the time of his birth, he always considered plaintiff to be his natural
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: When Succession
son. Plaintiff's natural filiation has been confirmed by his grandfather and
by a daughter of his grandfather, a sister of Francisco, his natural father.
In a decision rendered by the supreme court of Spain on June 23, 1902, it
was said that:
Recognition of the child as a natural child must be made if he has
been in continuous possession of his filiation, proven by the
attendance of his father at his baptism, in the certificate in which
his name and that of his mother appear, though the document
contains errors, and by his father's statement to various friends that
the boy was his natural son, and by his father's always having
attended to the care, education and support of his son.
So that the plaintiff, Francisco Osorio y Garcia, according to the facts
proven in this case and the law on the subject, is entitled to have his half
sister Soledad Osorio, a legitimate daughter of the father of both of them,
recognize him as being the natural, recognized son of Francisco Osorio y
Reyes and as entitled to the rights granted him by law in respect to his
deceased father's estate, all of which is in possession of the defendant
spouses (agreement, p. 19 of the record).
As for the rest, in view of the fact that appellants took no exception to the
order overruling their motion for a new trial, an omission which makes it
impossible for this court to review the evidence adduced by the parties,
therefore, and conformably to the weight given by the lower court to the
evidence, it is by all means proper to affirm the judgment appealed from,
and, deeming the errors thereto assigned to have been refuted, we should
for the foregoing reasons, affirm, as we do hereby affirm the said
judgment, with the costs against appellants. So ordered.
Arellano, C. J., Johnson, and Trent, JJ., concur.
Separate Opinions
MORELAND, J.; concurring:
I agree to an affirmance of the judgment of the trial court on the grounds
that the facts set forth in the judgment fully support the conclusions of
law, and that said judgment conforms to the issues raised. No exception
whatever having been made to the order denying the motion for a new
trial, we cannot examine the evidence.
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Occurs (Art 777)
G.R. No. L-25049
: When Succession
August 30, 1968
FILEMON RAMIREZ, MONICA RAMIREZ, and JOSE

EGUARAS, plaintiffs-appellants,
vs.
ARTEMIO BALTAZAR, ET AL., defendants-appellees.
Eduardo M. Peralta for plaintiffs-appellants.
Tomas P. Anonuevo for defendants-appellees Artemio Baltazar and Susana
Flores.
Tirso Caballero for defendant-appellee Artemio Diawan.
ANGELES, J.:
On appeal from an order dismissing the complaint, on motion to dismiss,
in Civil Case No. SC-319 of the Court of First Instance of Laguna.
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Occurs (Art 777)
: When Succession
It appears that on 6 January 1959, Victoriana Eguaras single, made and

executed a real estate mortgage over a parcel of land, owned by her in
fee simple, as security for a loan of P2,170.00 in favor of the spouses
Artemio Baltazar and Susana Flores.
Upon the demise of the mortgagor, the mortgagees, as creditors of the
deceased, on 16 September 1960 filed a petition for the intestate
proceedings of her estate, in the Court of First Instance of Laguna,
docketed as Civil Case No. SC-99 wherein said mortgages, as petitioners,
alleged that Filemon Ramirez and Monica Ramirez are the heirs of the
deceased. Filemon Ramirez was appointed administrator of the estate;
however, having failed to qualify, on 16 January 1961, the court appointed
Artemio Diawan, then a deputy clerk of court, administrator of the estate
who, in due time, qualified for the office.
On 19 April 1961, the mortgagees, Artemio Baltazar and Susana Flores,
filed a complaint for foreclosure of the aforesaid mortgage, against
Artemio Diawan, in his capacity as administrator of the estate, docketed
as Civil Case No. SC-292 of the Court of First Instance of Laguna. The
defendant-administrator was duly served with summons but he failed to
answer, whereupon, on petition of the plaintiffs said defendant was
declared in default. The case was referred to a commissioner to receive
the evidence for the plaintiffs, and defendant-administrator, as deputy
clerk of court, acted as such hearing commissioner. 1wph1.t
On 16 August 1961, decision was rendered decreeing the foreclosure of
the mortgaged property and the sale thereof, if, within ninety days from
finality of the decision, the obligation was not fully paid. The judgment not
having been satisfied, a writ of execution was issued for the sale of the
mortgaged property, and after compliance with the requirements of the
law regarding the sending, posting and publication of the notice of sale,
the Sheriff sold the property at public auction to the highest bidder, who
happened to be the plaintiffs themselves, for the sum of P2,888.50
covering the amount of the judgment, plus the expenses of the sale and
the Sheriff's fees. On petition of the plaintiffs, the sale was confirmed by
the court on 26 January 1962.
On 6 February 1962, Filemon Ramirez, Monica Ramirez and Jose Eguaras,
the first two being the heirs named in the petition for intestate
proceedings, filed a complaint designated "For the Annulment of all
Proceedings in said Civil Case No. SC-292 for the Foreclosure of the
Mortgage", against the spouses Artemio Baltazar and Susana Flores, and
Artemio Diawan, in his capacity as administrator of the estate of
Victoriana Eguaras, deceased, and Silverio Talabis, in his capacity as
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Occurs (Art 777)
: When Succession
deputy provincial sheriff of Laguna, docketed as Civil Case No. SC-319 of

the Court of First Instance of Laguna.
The facts hereinabove narrated are, succinctly, contained in the complaint
in said Civil Case No. SC-319, with the additional averments that the
defendant Diawan, the deputy clerk of court appointed as administrator of
the intestate estate of the deceased, acted in collusion with the other
defendants Artemio Baltazar and Susana Flores, deliberately and in fraud
of the plaintiffs: (a) in allowing the reglementary period within which to
file an answer to lapse without notifying and/or informing the said
plaintiffs of the complaint for foreclosure, as a result of which he was
declared in default to the prejudice of the estate which he represents; (b)
that had the plaintiffs (Monica and Filemon) been notified of the pendency
of the case, the defendant administrator could have interposed a
counterclaim because payment in the sum of P1,548.52 had been made
and received by the mortgagees on account of the debt; (c) in presiding
as hearing officer in the ex parte hearing in Civil Case No. 292, to receive
evidence for plaintiffs therein, notwithstanding the fact that there was
another deputy clerk of court available who could have acted in his stead,
as a result of which an anomalous situation was created whereby he was
a defendant and at the same time a commissioner receiving evidence
against himself as administrator; (d) in allowing judgment to become final
without notifying the plaintiffs; (e) in deliberately, allowing the 90-day
period within which to make payment to expire without notifying the
heirs, as a result of which the said heirs were not afforded an opportunity
to make payments ordered by the Court in its decision; and (f) in refusing
to help the heirs seek postponement of the auction sale. It is also alleged
that it was only when the property foreclosed was published for sale at
public auction that the heirs came to know about the foreclosure
proceedings.
The defendants spouses, Artemio Baltazar and Susana Flores, filed a
motion to dismiss the complaint on the ground that the plaintiffs have no
legal capacity to sue; defendant Diawan likewise moved to dismiss on two
grounds: that plaintiffs have no legal capacity to sue and that the
complaint states no cause of action. 1wph1.t
Despite vigorous opposition interposed by the plaintiffs against the
aforesaid motions to dismiss, the court, on 13 March 1962, dismissed the
complaint with costs against the plaintiffs, reasoning thus: that "upon
consideration of the evidence, said defendant could not have offered any
evidence to avoid the foreclosure of the mortgage which the Court found
to be in order. Under the circumstances and with the apparent
disinterestedness of Filemon and Rolando to qualify as administrator when
appointed, there could not have been any connivance and/or collusion
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Occurs (Art 777)
: When Succession
between plaintiffs in this case and Artemio Diawan as administrator"; and

that plaintiffs have no legal capacity to sue since their status as legal
heirs of the deceased has yet to be determined precisely in Special
Proceeding No. SC-99, and until such status is so fixed by the Court, they
have no cause of action against defendants.
In that order of 13 March 1962, the court also denied plaintiffs' petition for
the issuance of a writ of preliminary injunction to enjoin defendants from
entering and taking physical possession of the land in question on the
ground "that possession thereof was effected and delivered by the
Provincial Sheriff to Artemio Baltazar and Susana Flores on February,
1962."
Reconsideration of the aforesaid order having been denied, the plaintiffs
took the present appeal where they assigned the following errors: (1) in
holding that plaintiffs-appellants have no legal capacity to sue until their
status as legal heirs of the deceased is determined in Special Proceeding
No. SC-99; (2) in ruling that there was no collusion or connivance among
the defendants-appellees, despite the fact that the issue in the motion to
dismiss is purely legal, not factual; and (3) in denying the petition for a
writ of preliminary injunction.
At the outset, let it be remembered that the defendants-appellees, in
availing themselves of the defense that the plaintiffs-appellants had not
been declared to be the heirs of the deceased Victoriana Eguaras, have
overlooked the fact that the (defendants-appellees) themselves in their
petition for intestate proceedings (Case SC-99) have alleged that Filemon
Ramirez and Monica Ramirez, two of herein plaintiffs-appellants, are the
heirs of the deceased. Insofar as defendants-appellees are concerned, it is
our opinion that they are estopped from questioning the heirship of these
two named persons to the estate of the deceased.
There is no question that the rights to succession are automatically
transmitted to the heirs from the moment of the death of the
decedent.1 While, as a rule, the formal declaration or recognition to such
successional rights needs judicial confirmation, this Court has, under
special circumstances, protected these rights from encroachments made
or attempted before the judicial declaration.2 In Pascual vs. Pascual,3 it
was ruled that although heirs have no legal standing in court upon the
commencement of testate or intestate proceedings, this rule admits of an
exception as "when the administrator fails or refuses to act in which event
the heirs may act in his place."
A similar situation obtains in the case at bar. The administrator is being
charged to have been in collusion and connivance with the mortgagees of
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Occurs (Art 777)
: When Succession
a property of the deceased, allowing its foreclosure without notifying the

heirs, to the prejudice of the latter. Since the ground for the present
action to annul the aforesaid foreclosure proceedings is the fraud resulting
from such insidious machinations and collusion in which the administrator
has allegedly participated, it would be farfetched to expect the said
administrator himself to file the action in behalf of the estate. And who
else but the heirs, who have an interest to assert and to protect, would
bring the action? Inevitably, this case should fall under the exception,
rather than the general rule that pending proceedings for the settlement
of the estate, the heirs have no right to commence an action arising out of
the rights belonging to the deceased.
On the second point raised, We fully agree with the plaintiffs-appellants
that the lower court had gone too far in practically adjudicating the case
on the merits when it made the observation that "there could not have
been any connivance and/or collusion between plaintiffs in this case and
Artemio Diawan as administrator." A thorough scrutiny of the allegations
in the motions to dismiss filed by defendants-appellees does not indicate
that that question was ever put at issue therein. On the other hand, the
controversy on the existence or inexistence of collusion between the
parties as a result of which judgment was rendered against the estate
is the very core of the complaint that was dismissed. Undoubtedly, the
cause of action is based on Section 30, Rule 132 of the Rules of Court.
We are not, however, in accord with the third assigned error the denial
of the motion for the issuance of preliminary injunction for it puts at
issue the factual finding made by the lower court that the defendants had
already been placed in possession of the property. At this stage of the
proceeding, and considering the nature of the case before Us, such a
question is, at this time, beyond the competence of the Court.
PREMISES CONSIDERED, the order appealed from is hereby set aside
insofar as it dismissed the complaint in Civil Case No. SC-319, and the
records be remanded to the lower court for further proceedings. Costs
against defendants-appellees. The Clerk of Court is directed to furnish a
copy of this decision to the Department of Justice for its information.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro and Fernando, JJ., concur.
G.R. No. L-20609
September 29, 1966
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: When Succession
JUAN DE BORJA, MARCELA DE BORJA, SATURNINA DE BORJA,

EUFRACIA DE BORJA, JACOBA DE BORJA and OLIMPIA DE
BORJA, petitioners,
vs.
HON. EULOGIO MENCIAS, Judge of the Court of First Instance of
Rizal, THE PROVINCIAL SHERIFF OF RIZAL, DR. CRISANTO DE
BORJA, Administrator of the Intestate Estate of Marcelo de Borja
(CFI-Rizal, 2414) and JOSE DE BORJA, Administrator of the Testate
Estate of Josefa Tangco (CFI-Rizal-7866),respondents.
Tolentino and Garcia for petitioners.
Leonardo Almeda for respondents.
David Guevara for respondent J. de Borja.
DIZON, J.:
Original petition filed by Juan, Marcela, Saturnina, Eufracia, Jacoba and
Olimpia, all surnamed De Borja, to set aside the order of May 19, 1962 of
the Hon. Eulogio Mencias, Judge of the Court of First Instance of Rizal, in
Civil Case No. 2414 entitled "Intestate Estate of the Deceased Marcelo de
Borja, Crisanto de Borja, Administrator, etc.", as well as his order denying
their motion for reconsideration, and to compel him to cause the sale of
the properties levied upon to satisfy the final judgment rendered by the
Court of First Instance of Rizal in Civil Case No. 2414.
The record discloses that a money judgment involving the sum of
P46,210.78, plus interests, was rendered in favor of petitioners against
respondent Crisanto de Borja in Civil Case No. 2414 of the Court of First
lnstance of Rizal. Said decision having become final, a writ of execution
was issued and pursuant thereto, the respondent Provincial Sheriff of Rizal
levied on the rights, interest and participation which Crisanto de Borja had
in certain real properties in the province of Rizal, as an heir of the
decedents Josefa Tangco and Francisco de Borja, whose estates were then
pending settlement in Special Proceedings Nos. F-7866 and 1955 of the
aforementioned court, respectively.
Thereafter, respondent Jose de Borja, as administrator of the estate of
Josefa Tanco, filed with the respondent sheriff a third-party claim alleging
that the properties levied upon were in custodia legis in connection with
the settlement of the estate involved in Special Proceedings No. 7866
mentioned heretofore. Acting upon this claim, the sheriff required
petitioners to post an indemnity bond in the amount of P2,500,000.00.
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: When Succession
Contending that it was not their duty to file such bond, petitioners filed a
motion praying that the court order the sale of the properties levied upon,
without the need of their filing such bond.
On October 17, 1958 the respondent judge issued an order whose
dispositive part reads as follows:
WHEREFORE, this Court hereby holds that whatever interest, claim
or right which Crisanto de Borja may have in the testate estate of
Josefa Tangco and in the intestate estate of Francisco de Borja are
subject to attachment and execution for the purpose of satisfying
the money judgment rendered against the said heir; that said
interest, claim or right have been legally levied upon and
consequently can be sold by the Provincial Sheriff of Rizal for the
satisfaction of the judgment rendered in favor of the petitioners
herein, the filing of the so-called third-party claim notwithstanding.
It further holds that there is no sufficient reason for requiring the
judgment creditors to file an indemnity bond. As a consequence, the
Court hereby directs the Provincial Sheriff of Rizal to proceed with
the sale of the rights, interests and claim of Crisanto de Borja in the
aforementioned estates upon compliance with the requirements of
the Rules of Court.
His motion for reconsideration of the above order having been denied,
respondent-administrator Jose de Borja appealed to us (G.R. No. L-14851),
and on August 31, 1961, We rendered judgment affirming the appealed
order. Said decision having become final and executory, petitioners filed
with the respondent judge a motion for the issuance of an alias writ of
execution, which motion was granted in an order dated February 26,
1962, of the following tenor:
Wherefore, the Court hereby orders the Provincial Sheriff of Rizal to
continue with his proceedings in the first writ of execution which
had already been issued. Let another writ of execution with respect
to the costs adjudged in the last decision of the Supreme Court
issue.1awphl.nt
Upon motions for reconsideration filed by respondents Crisanto de Borja
and Jose de Borja, in their capacities as administrators of the intestate
estate of the deceased Francisco de Borja (CFI-Rizal, 1955) and the
testate estate of Josefa Tangco (CFI-Rizal, 7866), respectively, on the
ground that the rights and interest of the judgment debtor (Crisanto de
Borja) in the aforesaid estate could be sold only after final settlement of
the latter, pursuant to Section 9, Rule 59 of the Rules of Court, (Section 9
of Rule 57 of the New Rules of Court), and praying that the sheriff be
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directed to proceed with the execution accordingly, the respondent judge

issued, on May 19, 1962, the amendatory order subject-matter of this
action, which reads as follows:
Considering the two motions for reconsiderations dated March 23,
and March 20, 1962, filed by Crisanto de Borja and Jose de Borja,
respectively, to be well-taken and notwithstanding the opposition
filed thereto, the same are hereby granted, and the order of the
Court dated February 26, 1962, is hereby amended in the sense
that the Provincial Sheriff of Rizal be ordered to garnish whatever
share or interests the judgment debtor may or might have by way of
share or inheritance in the estate of the deceased Jose Tangco
subject of Special Proceedings No. 7866 also of this Court, and in
the estate of the deceased Francisco de Borja subject of Special
Proceedings No. 1955 also of this court, in accordance with the
provision of Section 9, Rule 59 of the Rules of Court and in
conformity with the doctrine laid down in the case of Litonjua vs.
Montilla, G.R. No. L-4170, promulgated on January 31, 1962.
Their motion for reconsideration of the above-quoted order having been
denied, petitioners filed the present petition claiming that respondent
judge's order of May 19, 1961 illegally modified the final judgment of the
Supreme Court in G.R. No. L-14851 which directed the sale of the
properties levied upon for the satisfaction of the judgment rendered in
favor of petitioners in Civil Case No. 2414. It is a fact that whatever rights,
interest and participation Crisanto de Borja has in certain real properties
under judicial administration in Special Proceedings Nos. F-7866 and 1955
of the Court of First Instance of Rizal, were properly levied upon pursuant
to the writ of execution issued by said court in Civil Case No. 2414. On the
other hand, it is beyond question that such rights, interest and
participation are subject to attachment and/or levy in execution in
accordance with Section 9, Rule 57 of the Rules of Court. The question to
be resolved here is whether or not, after the attachment or levy in
execution, the rights, interest and participation of Crisanto de Borja in the
estate left by decedents Josefa Tangco and Francisco de Borja may be sold
at public auction to satisfy the money judgment rendered against him.
The above question, in our opinion, must be answered in the affirmative,
provided it is understood that the sale shall be only of whatever rights,
interest and participation may be adjudicated to said heir as a result of
the final settlement of the estates, and that delivery thereof to the
judgment creditor or to the purchaser at the public sale thereof shall be
made only after the final settlement of the estates and in the manner
provided by the legal provision mentioned above.
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: When Succession
WHEREFORE, modifying and/or clarifying the appealed order in the

manner stated in the next preceding paragraph, judgment is hereby
rendered directing the respondent court to proceed accordingly. Without
costs.
Concepcion, C.J., Reyes, J.B.L., Barrera, Regala, Makalintal, Bengzon, J.P.,
Zaldivar, Sanchez and Castro, JJ., concur.
G.R. No. L-21993
June 21, 1966
P a g e 15 | 111

Occurs (Art 777)
: When Succession
ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,

vs.
HON. JUAN DE BORJA, as Judge of the Court of First Instance of
Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.
Lorenzo Somulong for petitioners.
Torres and Torres for respondents.
REYES, J.B.L., J.:
Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez,
petition this Court for a writ of certiorariand prohibition to the Court of
First Instance of Bulacan, for its refusal to grant their motion to dismiss its
Special Proceeding No. 1331, which said Court is alleged to have taken
cognizance of without jurisdiction.
The facts and issues are succinctly narrated in the order of the respondent
court, dated June 13, 1963 (Petition, Annex 0), in this wise:
It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo
and Antonio Rodriguez, through counsel, that this Court "has no
jurisdiction to try the above-entitled case in view of the pendency of
another action for the settlement of the estate of the deceased Rev.
Fr. Celestino Rodriguez in the Court of First Instance of Rizal,
namely, Sp. Proceedings No. 3907 entitled 'In the matter of the
Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which
was filed ahead of the instant case".
The records show that Fr. Celestino Rodriguez died on February 12,
1963 in the City of Manila; that on March 4, 1963, Apolonia
Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of
Bulacan a purported last will and testament of Fr. Rodriguez; that on
March 8, 1963, Maria Rodriguez and Angela Rodriguez, through
counsel filed a petition for leave of court to allow them to examine
the alleged will; that on March 11, 1963 before the Court could act
on the petition, the same was withdrawn; that on March 12, 1963,
aforementioned petitioners filed before the Court of First Instance of
Rizal a petition for the settlement of the intestate estate of Fr.
Rodriguez alleging, among other things, that Fr. Rodriguez was a
resident of Paraaque, Rizal, and died without leaving a will and
praying that Maria Rodriguez be appointed as Special Administratrix
of the estate; and that on March 12, 1963 Apolonia Pangilinan and
Adelaida Jacalan filed a petition in this Court for the probation of the
will delivered by them on March 4, 1963. It was stipulated by the
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Occurs (Art 777)
: When Succession
parties that Fr. Rodriguez was born in Paraaque, Rizal; that he was
Parish priest of the Catholic Church of Hagonoy, Bulacan, from the
year 1930 up to the time of his death in 1963; that he was buried in
Paraaque, and that he left real properties in Rizal, Cavite, Quezon
City and Bulacan.
The movants contend that since the intestate proceedings in the
Court of First Instance of Rizal was filed at 8:00 A.M. on March 12,
1963 while the petition for probate was filed in the Court of First
Instance of Bulacan at 11:00 A.M. on the same date, the latter Court
has no jurisdiction to entertain the petition for probate, citing as
authority in support thereof the case of Ongsingco Vda. de Borja vs.
Tan and De Borja, G.R. No. 7792, July 27, 1955.
The petitioners Pangilinan and Jacalan, on the other hand, take the
stand that the Court of First Instance of Bulacan acquired
jurisdiction over the case upon delivery by them of the will to the
Clerk of Court on March 4, 1963, and that the case in this Court
therefore has precedence over the case filed in Rizal on March 12,
1963.
The Court of First Instance, as previously stated denied the motion to
dismiss on the ground that a difference of a few hours did not entitle one
proceeding to preference over the other; that, as early as March 7,
movants were aware of the existence of the purported will of Father
Rodriguez, deposited in the Court of Bulacan, since they filed a petition to
examine the same, and that movants clearly filed the intestate
proceedings in Rizal "for no other purpose than to prevent this Court (of
Bulacan) from exercising jurisdiction over the probate proceedings".
Reconsideration having been denied, movants, now petitioners, came to
this Court, relying principally on Rule 73, section 1 of the Rules of Court,
and invoking our ruling in Ongsingco vs. Tan and De Borja, L-7792, July 27,
1955.
SECTION 1. Where estate of deceased persons settled. If the
decedent is an inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First
Instance in the province in which he resides at the time of his death,
and if he is an inhabitant of a foreign country, the Court of First
Instance of any province which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, as far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not
P a g e 17 | 111

Occurs (Art 777)
: When Succession
be contested in a suit or proceeding, except in an appeal from that

court, in the original case, or when the want of jurisdiction appears
on the record.
We find this recourse to be untenable. The jurisdiction of the Court of First
Instance of Bulacan became vested upon the delivery thereto of the will of
the late Father Rodriguez on March 4, 1963, even if no petition for its
allowance was filed until later, because upon the will being deposited the
court could, motu proprio, have taken steps to fix the time and place for
proving the will, and issued the corresponding notices conformably to
what is prescribed by section 3, Rule 76, of the Revised Rules of Court
(Section 3, Rule 77, of the old Rules):
SEC. 3. Court to appoint time for proving will. Notice thereof to be
published. When a will is delivered to, or a petition for the
allowance of a will is filed in, the Court having jurisdiction, such
Court shall fix a time and place for proving the will when all
concerned may appear to contest the allowance thereof, and shall
cause notice of such time and place to be published three (3) weeks
successively, previous to the time appointed, in a newspaper of
general circulation in the province.
But no newspaper publication shall be made where the petition for
probate has been filed by the testator himself.
The use of the disjunctive in the words "when a will is delivered to OR a
petition for the allowance of a will is filed" plainly indicates that the court
may act upon the mere deposit therein of a decedent's testament, even if
no petition for its allowance is as yet filed. Where the petition for probate
is made after the deposit of the will, the petition is deemed to relate back
to the time when the will was delivered. Since the testament of Fr.
Rodriguez was submitted and delivered to the Court of Bulacan on March
4, while petitioners initiated intestate proceedings in the Court of First
Instance of Rizal only on March 12, eight days later, the precedence and
exclusive jurisdiction of the Bulacan court is incontestable.1wph1.t
But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of
a will being delivered to "the Court having jurisdiction," and in the case at
bar the Bulacan court did not have it because the decedent was domiciled
in Rizal province. We can not disregard Fr. Rodriguez's 33 years of
residence as parish priest in Hagonoy, Bulacan (1930-1963); but even if
we do so, and consider that he retained throughout some animus
revertendi to the place of his birth in Paraaque, Rizal, that detail would
not imply that the Bulacan court lacked jurisdiction. As ruled in previous
decisions, the power to settle decedents' estates is conferred by law upon
P a g e 18 | 111

Occurs (Art 777)
: When Succession
all courts of first instance, and the domicile of the testator only affects the
venue but not the jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239;
Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither
party denies that the late Fr. Rodriguez is deceased, or that he left
personal property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of
June 11, 1963, Annex "H", Petition, Rec., p. 48). That is sufficient in the
case before us.
In the Kaw Singco case (ante) this Court ruled that:
"... If we consider such question of residence as one affecting the
jurisdiction of the trial court over the subject-matter, the effect shall
be that the whole proceedings including all decisions on the
different incidents which have arisen in court will have to be
annulled and the same case will have to be commenced anew
before another court of the same rank in another province. That this
is of mischievous effect in the prompt administration of justice is too
obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co.,
G.R. No. 48206, December 31, 1942). Furthermore, section 600 of
Act No. 190, providing that the estate of a deceased person shall be
settled in the province where he had last resided, could not have
been intended as defining the jurisdiction of the probate court over
the subject matter, because such legal provision is contained in a
law of procedure dealing merely with procedural matters, and, as
we have said time and again, procedure is one thing and jurisdiction
over the subject matter is another. (Attorney General vs. Manila
Railroad Company, 20 Phil. 523.) The law of jurisdiction Act No.
136, Section 56, No. 5 confers upon Courts of First Instance
jurisdiction over all probate cases independently of the place of
residence of the deceased.1 Since, however, there are many Courts
of First Instance in the Philippines, the Law of Procedure, Act No.
190, section 600, fixes the venue or the place where each case shall
be brought. Thus, the place of residence of the deceased is not an
element of jurisdiction over the subject matter but merely of venue.
And it is upon this ground that in the new Rules of Court the
province where the estate of a deceased person shall be settled is
properly called "venue" (Rule 75, section 1.) Motion for
reconsideration is denied.
The estate proceedings having been initiated in the Bulacan Court of First
Instance ahead of any other, that court is entitled to assume jurisdiction
to the exclusion of all other courts, even if it were a case of wrong venue
by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since
the same enjoins that:
P a g e 19 | 111

Occurs (Art 777)
: When Succession
The Court first taking cognizance of the settlement of the estate of

a decedent shall exercise jurisdiction to the exclusion of all other
courts. (Sec. 1)
This disposition presupposes that two or more courts have been asked to
take cognizance of the settlement of the estate. Of them only one could
be of proper venue, yet the rule grants precedence to that Court whose
jurisdiction is first invoked, without taking venue into account.
There are two other reasons that militate against the success of
petitioners. One is that their commencing intestate proceedings in Rizal,
after they learned of the delivery of the decedent's will to the Court of
Bulacan, was in bad faith, patently done with a view to divesting the latter
court of the precedence awarded it by the Rules. Certainly the order of
priority established in Rule 73 (old Rule 75) was not designed to convert
the settlement of decedent's estates into a race between applicants, with
the administration of the properties as the price for the fleetest.
The other reason is that, in our system of civil law, intestate succession is
only subsidiary or subordinate to the testate, since intestacy only takes
place in the absence of a valid operative will. Says Article 960 of the Civil
Code of the Philippines:
ART. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which
has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the
property belonging to the testator. In such case, legal succession
shall take place only with respect to the property in which the
testator has not disposed;
(3) If the suspensive condition attached to the institution of heir
does not happen or is not fulfilled, or if the heir dies before the
testator, or repudiates the inheritance, there being no substitution,
and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in
cases provided in this Code.
Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after
final decision as to the nullity of testate succession could an intestate
succession be instituted in the form of pre-established action". The
P a g e 20 | 111

Occurs (Art 777)
: When Succession
institution of intestacy proceedings in Rizal may not thus proceed while

the probate of the purported will of Father Rodriguez is pending.
We rule that the Bulacan Court of First Instance was entitled to priority in
the settlement of the estate in question, and that in refusing to dismiss
the probate. proceedings, said court did not commit any abuse of
discretion. It is the proceedings in the Rizal Court that should be
discontinued.
Wherefore, the writ of certiorari applied for is denied. Costs against
petitioners Rodriguez.
Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P.,
Zaldivar and Sanchez, JJ., concur.
Footnotes
1
Now section 44, subpar. (e) of the Judiciary Act (R.A. No. 296).
G.R. No. L-4963
January 29, 1953
MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO
NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA,
Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of five (5)
parcels of land situated in the Municipality of Labrador, Province of
Pangasinan, filed by Maria Uson against Maria del Rosario and her four
children named Concepcion, Conrado, Dominador, and Faustino,
P a g e 21 | 111

Occurs (Art 777)
: When Succession
surnamed Nebreda, who are all of minor age, before the Court of First
Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in
1945 left the lands involved in this litigation. Faustino Nebreda left no
other heir except his widow Maria Uson. However, plaintiff claims that
when Faustino Nebreda died in 1945, his common-law wife Maria del
Rosario took possession illegally of said lands thus depriving her of their
possession and enjoyment.
Defendants in their answer set up as special defense that on February 21,
1931, Maria Uson and her husband, the late Faustino Nebreda, executed a
public document whereby they agreed to separate as husband and wife
and, in consideration of their separation, Maria Uson was given a parcel of
land by way of alimony and in return she renounced her right to inherit
any other property that may be left by her husband upon his death
(Exhibit 1).
After trial, at which both parties presented their respective evidence, the
court rendered decision ordering the defendants to restore to the plaintiff
the ownership and possession of the lands in dispute without special
pronouncement as to costs. Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of
Faustino Nebreda, former owner of the five parcels of lands litigated in the
present case. There is likewise no dispute that Maria del Rosario, one of
the defendants-appellants, was merely a common-law wife of the late
Faustino Nebreda with whom she had four illegitimate children, her now
co-defendants. It likewise appears that Faustino Nebreda died in 1945
much prior to the effectivity of the new Civil Code. With this background,
it is evident that when Faustino Nebreda died in 1945 the five parcels of
land he was seized of at the time passed from the moment of his death to
his only heir, his widow Maria Uson (Article 657, old Civil Code).As this
Court aptly said, "The property belongs to the heirs at the moment of the
death of the ancestor as completely as if the ancestor had executed and
delivered to them a deed for the same before his death" (Ilustre vs. Alaras
Frondosa, 17 Phil., 321). From that moment, therefore, the rights of
inheritance of Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right
over the lands in question because she expressly renounced to inherit any
future property that her husband may acquire and leave upon his death in
the deed of separation they had entered into on February 21, 1931,
cannot be entertained for the simple reason that future inheritance
cannot be the subject of a contract nor can it be renounced (1 Manresa,
P a g e 22 | 111

Occurs (Art 777)
: When Succession
123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and
Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor
defendants are illegitimate children of the late Faustino Nebreda and
under the old Civil Code are not entitled to any successional rights,
however, under the new Civil Code which became in force in June, 1950,
they are given the status and rights of natural children and are entitled to
the successional rights which the law accords to the latter (article 2264
and article 287, new Civil Code), and because these successional rights
were declared for the first time in the new code, they shall be given
retroactive effect even though the event which gave rise to them may
have occurred under the prior legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides
indeed that rights which are declared for the first time shall have
retroactive effect even though the event which gave rise to them may
have occurred under the former legislation, but this is so only when the
new rights do not prejudice any vested or acquired right of the same
origin. Thus, said article provides that "if a right should be declared for the
first time in this Code, it shall be effective at once, even though the act or
event which gives rise thereto may have been done or may have occurred
under the prior legislation, provided said new right does not prejudice or
impair any vested or acquired right, of the same origin." As already stated
in the early part of this decision, the right of ownership of Maria Uson over
the lands in question became vested in 1945 upon the death of her late
husband and this is so because of the imperative provision of the law
which commands that the rights to succession are transmitted from the
moment of death (Article 657, old Civil Code). The new right recognized
by the new Civil Code in favor of the illegitimate children of the deceased
cannot, therefore, be asserted to the impairment of the vested right of
Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was
lying in state, in a gesture of pity or compassion, agreed to assign the
lands in question to the minor children for the reason that they were
acquired while the deceased was living with their mother and Maria Uson
wanted to assuage somewhat the wrong she has done to them, this much
can be said; apart from the fact that this claim is disputed, we are of the
opinion that said assignment, if any, partakes of the nature of a donation
of real property, inasmuch as it involves no material consideration, and in
order that it may be valid it shall be made in a public document and must
be accepted either in the same document or in a separate one (Article
633, old Civil Code). Inasmuch as this essential formality has not been
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Occurs (Art 777)
: When Succession
followed, it results that the alleged assignment or donation has no valid

effect.
WHEREFORE, the decision appealed from is affirmed, without costs.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and
Labrador, JJ., concur.
G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and
PONCIANO BONILLA (their father) who represents the
minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA,
MANUEL BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and
HON. LEOPOLDO GIRONELLA of the Court of First Instance of
Abra,respondents.
P a g e 24 | 111

Occurs (Art 777)
: When Succession
Federico Paredes for petitioners.

Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of
Abra in Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena,
et al., denying the motions for reconsideration of its order dismissing the
complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla
and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action
in the Court of First Instance of Abra, to quiet title over certain parcels of
land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the
complaint, but before the hearing of the motion to dismiss, the counsel for
the plaintiff moved to amend the complaint in order to include certain
allegations therein. The motion to amend the complaint was granted and
on July 17, 1975, plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the
complaint on the ground that Fortunata Barcena is dead and, therefore,
has no legal capacity to sue. Said motion to dismiss was heard on August
14, 1975. In said hearing, counsel for the plaintiff confirmed the death of
Fortunata Barcena, and asked for substitution by her minor children and
her husband, the petitioners herein; but the court after the hearing
immediately dismissed the case on the ground that a dead person cannot
be a real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order
dismissing the complaint and on August 23, 1975, he moved to set aside
the order of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the
Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed
by counsel for the plaintiff for lack of merit. On September 1, 1975,
counsel for deceased plaintiff filed a written manifestation praying that
the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute
their deceased mother, but the court denied the counsel's prayer for lack
of merit. From the order, counsel for the deceased plaintiff filed a second
motion for reconsideration of the order dismissing the complaint claiming
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Occurs (Art 777)
: When Succession
that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of

Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order
dismissing the complaint in Civil Case No. 856 and its orders denying the
motion for reconsideration of said order of dismissal. While it is true that a
person who is dead cannot sue in court, yet he can be substituted by his
heirs in pursuing the case up to its completion. The records of this case
show that the death of Fortunata Barcena took place on July 9, 1975 while
the complaint was filed on March 31, 1975. This means that when the
complaint was filed on March 31, 1975, Fortunata Barcena was still alive,
and therefore, the court had acquired jurisdiction over her person. If
thereafter she died, the Rules of Court prescribes the procedure whereby
a party who died during the pendency of the proceeding can be
substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a
party to a pending case dies ... it shall be the duty of his attorney to
inform the court promptly of such death ... and to give the name and
residence of his executor, administrator, guardian or other legal
representatives." This duty was complied with by the counsel for the
deceased plaintiff when he manifested before the respondent Court that
Fortunata Barcena died on July 9, 1975 and asked for the proper
substitution of parties in the case. The respondent Court, however,
instead of allowing the substitution, dismissed the complaint on the
ground that a dead person has no legal personality to sue. This is a grave
error. Article 777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of the
decedent." From the moment of the death of the decedent, the heirs
become the absolute owners of his property, subject to the rights and
obligations of the decedent, and they cannot be deprived of their rights
thereto except by the methods provided for by law. 3 The moment of
death is the determining factor when the heirs acquire a definite right to
the inheritance whether such right be pure or contingent. 4 The right of
the heirs to the property of the deceased vests in them even before
judicial declaration of their being heirs in the testate or intestate
proceedings. 5 When Fortunata Barcena, therefore, died her claim or right
to the parcels of land in litigation in Civil Case No. 856, was not
extinguished by her death but was transmitted to her heirs upon her
death. Her heirs have thus acquired interest in the properties in litigation
and became parties in interest in the case. There is, therefore, no reason
for the respondent Court not to allow their substitution as parties in
interest for the deceased plaintiff.
P a g e 26 | 111

Occurs (Art 777)
: When Succession
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the
claim is not thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear and be
substituted for the deceased, within such time as may be granted ... ."
The question as to whether an action survives or not depends on the
nature of the action and the damage sued for. 6 In the causes of action
which survive the wrong complained affects primarily and principally
property and property rights, the injuries to the person being merely
incidental, while in the causes of action which do not survive the injury
complained of is to the person, the property and rights of property
affected being incidental. 7 Following the foregoing criterion the claim of
the deceased plaintiff which is an action to quiet title over the parcels of
land in litigation affects primarily and principally property and property
rights and therefore is one that survives even after her death. It is,
therefore, the duty of the respondent Court to order the legal
representative of the deceased plaintiff to appear and to be substituted
for her. But what the respondent Court did, upon being informed by the
counsel for the deceased plaintiff that the latter was dead, was to dismiss
the complaint. This should not have been done for under the same
Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if
the legal representative fails to appear, to order the opposing party to
procure the appointment of a legal representative of the deceased. In the
instant case the respondent Court did not have to bother ordering the
opposing party to procure the appointment of a legal representative of the
deceased because her counsel has not only asked that the minor children
be substituted for her but also suggested that their uncle be appointed as
guardian ad litem for them because their father is busy in Manila earning
a living for the family. But the respondent Court refused the request for
substitution on the ground that the children were still minors and cannot
sue in court. This is another grave error because the respondent Court
ought to have known that under the same Section 17, Rule 3 of the Rules
of Court, the court is directed to appoint a guardian ad litem for the minor
heirs. Precisely in the instant case, the counsel for the deceased plaintiff
has suggested to the respondent Court that the uncle of the minors be
appointed to act as guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in not complying with
the clear provision of the Rules of Court in dismissing the complaint of the
plaintiff in Civil Case No. 856 and refusing the substitution of parties in the
case.
IN VIEW OF THE FOREGOING, the order of the respondent Court
dismissing the complaint in Civil Case No. 856 of the Court of First
Instance of Abra and the motions for reconsideration of the order of
dismissal of said complaint are set aside and the respondent Court is
hereby directed to allow the substitution of the minor children, who are
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Occurs (Art 777)
: When Succession
the petitioners therein for the deceased plaintiff and to appoint a qualified
person as guardianad litem for them. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.
G.R. No. L-43082
June 18, 1937
PABLO LORENZO, as trustee of the estate of Thomas Hanley,

deceased, plaintiff-appellant,
vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendantappellant.
Pablo Lorenzo and Delfin Joven for plaintiff-appellant.
Office of the Solicitor-General Hilado for defendant-appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee
of the estate of Thomas Hanley, deceased, brought this action in the
Court of First Instance of Zamboanga against the defendant, Juan
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Occurs (Art 777)
: When Succession
Posadas, Jr., then the Collector of Internal Revenue, for the refund of the
amount of P2,052.74, paid by the plaintiff as inheritance tax on the estate
of the deceased, and for the collection of interst thereon at the rate of 6
per cent per annum, computed from September 15, 1932, the date when
the aforesaid tax was [paid under protest. The defendant set up a
counterclaim for P1,191.27 alleged to be interest due on the tax in
question and which was not included in the original assessment. From the
decision of the Court of First Instance of Zamboanga dismissing both the
plaintiff's complaint and the defendant's counterclaim, both parties
appealed to this court.
It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga,
Zamboanga, leaving a will (Exhibit 5) and considerable amount of real and
personal properties. On june 14, 1922, proceedings for the probate of his
will and the settlement and distribution of his estate were begun in the
Court of First Instance of Zamboanga. The will was admitted to probate.
Said will provides, among other things, as follows:
4. I direct that any money left by me be given to my nephew
Matthew Hanley.
5. I direct that all real estate owned by me at the time of my death
be not sold or otherwise disposed of for a period of ten (10) years
after my death, and that the same be handled and managed by the
executors, and proceeds thereof to be given to my nephew,
Matthew Hanley, at Castlemore, Ballaghaderine, County of
Rosecommon, Ireland, and that he be directed that the same be
used only for the education of my brother's children and their
descendants.
6. I direct that ten (10) years after my death my property be given
to the above mentioned Matthew Hanley to be disposed of in the
way he thinks most advantageous.
xxx
xxx
xxx
8. I state at this time I have one brother living, named Malachi

Hanley, and that my nephew, Matthew Hanley, is a son of my said
brother, Malachi Hanley.
The Court of First Instance of Zamboanga considered it proper for the best
interests of ther estate to appoint a trustee to administer the real
properties which, under the will, were to pass to Matthew Hanley ten
years after the two executors named in the will, was, on March 8, 1924,
appointed trustee. Moore took his oath of office and gave bond on March
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10, 1924. He acted as trustee until February 29, 1932, when he resigned
and the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant Collector
of Internal Revenue, alleging that the estate left by the deceased at the
time of his death consisted of realty valued at P27,920 and personalty
valued at P1,465, and allowing a deduction of P480.81, assessed against
the estate an inheritance tax in the amount of P1,434.24 which, together
with the penalties for deliquency in payment consisting of a 1 per cent
monthly interest from July 1, 1931 to the date of payment and a
surcharge of 25 per cent on the tax, amounted to P2,052.74. On March
15, 1932, the defendant filed a motion in the testamentary proceedings
pending before the Court of First Instance of Zamboanga (Special
proceedings No. 302) praying that the trustee, plaintiff herein, be ordered
to pay to the Government the said sum of P2,052.74. The motion was
granted. On September 15, 1932, the plaintiff paid said amount under
protest, notifying the defendant at the same time that unless the amount
was promptly refunded suit would be brought for its recovery. The
defendant overruled the plaintiff's protest and refused to refund the said
amount hausted, plaintiff went to court with the result herein above
indicated.
In his appeal, plaintiff contends that the lower court erred:
I. In holding that the real property of Thomas Hanley, deceased,
passed to his instituted heir, Matthew Hanley, from the moment of
the death of the former, and that from the time, the latter became
the owner thereof.
II. In holding, in effect, that there was deliquency in the payment of
inheritance tax due on the estate of said deceased.
III. In holding that the inheritance tax in question be based upon the
value of the estate upon the death of the testator, and not, as it
should have been held, upon the value thereof at the expiration of
the period of ten years after which, according to the testator's will,
the property could be and was to be delivered to the instituted heir.
IV. In not allowing as lawful deductions, in the determination of the
net amount of the estate subject to said tax, the amounts allowed
by the court as compensation to the "trustees" and paid to them
from the decedent's estate.
V. In not rendering judgment in favor of the plaintiff and in denying
his motion for new trial.
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The defendant-appellant contradicts the theories of the plaintiff and

assigns the following error besides:
The lower court erred in not ordering the plaintiff to pay to the
defendant the sum of P1,191.27, representing part of the interest at
the rate of 1 per cent per month from April 10, 1924, to June 30,
1931, which the plaintiff had failed to pay on the inheritance tax
assessed by the defendant against the estate of Thomas Hanley.
The following are the principal questions to be decided by this court in
this appeal: (a) When does the inheritance tax accrue and when must it
be satisfied? (b) Should the inheritance tax be computed on the basis of
the value of the estate at the time of the testator's death, or on its value
ten years later? (c) In determining the net value of the estate subject to
tax, is it proper to deduct the compensation due to trustees? (d) What law
governs the case at bar? Should the provisions of Act No. 3606 favorable
to the tax-payer be given retroactive effect? (e) Has there been
deliquency in the payment of the inheritance tax? If so, should the
additional interest claimed by the defendant in his appeal be paid by the
estate? Other points of incidental importance, raised by the parties in
their briefs, will be touched upon in the course of this opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to pay
the same. Section 1536 as amended, of the Administrative Code, imposes
the tax upon "every transmission by virtue of inheritance, devise,
bequest, giftmortis causa, or advance in anticipation of
inheritance,devise, or bequest." The tax therefore is upon transmission or
the transfer or devolution of property of a decedent, made effective by his
death. (61 C. J., p. 1592.) It is in reality an excise or privilege tax imposed
on the right to succeed to, receive, or take property by or under a will or
the intestacy law, or deed, grant, or gift to become operative at or after
death. Acording to article 657 of the Civil Code, "the rights to the
succession of a person are transmitted from the moment of his death." "In
other words", said Arellano, C. J., ". . . the heirs succeed immediately to all
of the property of the deceased ancestor. The property belongs to the
heirs at the moment of the death of the ancestor as completely as if the
ancestor had executed and delivered to them a deed for the same before
his death." (Bondad vs. Bondad, 34 Phil., 232. See also, Mijares vs. Nery, 3
Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil., 13; Lubrico vs. Arbado,
12 Phil., 391; Innocencio vs. Gat-Pandan, 14 Phil., 491; Aliasas
vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321;
Malahacan vs. Ignacio, 19 Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario
vs. Osario & Yuchausti Steamship Co., 41 Phil., 531; Fule vs. Fule, 46 Phil.,
317; Dais vs. Court of First Instance of Capiz, 51 Phil., 396; Baun vs. Heirs
of Baun, 53 Phil., 654.) Plaintiff, however, asserts that while article 657 of
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the Civil Code is applicable to testate as well as intestate succession, it

operates only in so far as forced heirs are concerned. But the language of
article 657 of the Civil Code is broad and makes no distinction between
different classes of heirs. That article does not speak of forced heirs; it
does not even use the word "heir". It speaks of the rights of succession
and the transmission thereof from the moment of death. The provision of
section 625 of the Code of Civil Procedure regarding the authentication
and probate of a will as a necessary condition to effect transmission of
property does not affect the general rule laid down in article 657 of the
Civil Code. The authentication of a will implies its due execution but once
probated and allowed the transmission is effective as of the death of the
testator in accordance with article 657 of the Civil Code. Whatever may
be the time when actual transmission of the inheritance takes place,
succession takes place in any event at the moment of the decedent's
death. The time when the heirs legally succeed to the inheritance may
differ from the time when the heirs actually receive such inheritance.
"Poco importa", says Manresa commenting on article 657 of the Civil
Code, "que desde el falleimiento del causante, hasta que el heredero o
legatario entre en posesion de los bienes de la herencia o del legado,
transcurra mucho o poco tiempo, pues la adquisicion ha de retrotraerse al
momento de la muerte, y asi lo ordena el articulo 989, que debe
considerarse como complemento del presente." (5 Manresa, 305; see
also, art. 440, par. 1, Civil Code.) Thomas Hanley having died on May 27,
1922, the inheritance tax accrued as of the date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it
does not follow that the obligation to pay the tax arose as of the date. The
time for the payment on inheritance tax is clearly fixed by section 1544 of
the Revised Administrative Code as amended by Act No. 3031, in relation
to section 1543 of the same Code. The two sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions.
The following shall not be taxed:
(a) The merger of the usufruct in the owner of the naked title.
(b) The transmission or delivery of the inheritance or legacy
by the fiduciary heir or legatee to the trustees.
(c) The transmission from the first heir, legatee, or donee in
favor of another beneficiary, in accordance with the desire of
the predecessor.
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In the last two cases, if the scale of taxation appropriate to the new
beneficiary is greater than that paid by the first, the former must
pay the difference.
SEC. 1544. When tax to be paid. The tax fixed in this article shall
be paid:
(a) In the second and third cases of the next preceding
section, before entrance into possession of the property.
(b) In other cases, within the six months subsequent to the
death of the predecessor; but if judicial testamentary or
intestate proceedings shall be instituted prior to the expiration
of said period, the payment shall be made by the executor or
administrator before delivering to each beneficiary his share.
If the tax is not paid within the time hereinbefore prescribed,
interest at the rate of twelve per centum per annum shall be added
as part of the tax; and to the tax and interest due and unpaid within
ten days after the date of notice and demand thereof by the
collector, there shall be further added a surcharge of twenty-five per
centum.
A certified of all letters testamentary or of admisitration shall be
furnished the Collector of Internal Revenue by the Clerk of Court
within thirty days after their issuance.
It should be observed in passing that the word "trustee", appearing in
subsection (b) of section 1543, should read "fideicommissary" or "cestui
que trust". There was an obvious mistake in translation from the Spanish
to the English version.
The instant case does fall under subsection (a), but under subsection (b),
of section 1544 above-quoted, as there is here no fiduciary heirs, first
heirs, legatee or donee. Under the subsection, the tax should have been
paid before the delivery of the properties in question to P. J. M. Moore as
trustee on March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as
the real properties are concerned, did not and could not legally pass to
the instituted heir, Matthew Hanley, until after the expiration of ten years
from the death of the testator on May 27, 1922 and, that the inheritance
tax should be based on the value of the estate in 1932, or ten years after
the testator's death. The plaintiff introduced evidence tending to show
that in 1932 the real properties in question had a reasonable value of only
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P5,787. This amount added to the value of the personal property left by
the deceased, which the plaintiff admits is P1,465, would generate an
inheritance tax which, excluding deductions, interest and surcharge,
would amount only to about P169.52.
If death is the generating source from which the power of the estate to
impose inheritance taxes takes its being and if, upon the death of the
decedent, succession takes place and the right of the estate to tax vests
instantly, the tax should be measured by the vlaue of the estate as it
stood at the time of the decedent's death, regardless of any subsequent
contingency value of any subsequent increase or decrease in value. (61 C.
J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and Bancroft, Inheritance
Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep.,
747; 44 Law. ed., 969.) "The right of the state to an inheritance tax
accrues at the moment of death, and hence is ordinarily measured as to
any beneficiary by the value at that time of such property as passes to
him. Subsequent appreciation or depriciation is immaterial." (Ross,
Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the rule in Cyclopedia of Law
of and Procedure (vol. 37, pp. 1574, 1575) that, in the case of contingent
remainders, taxation is postponed until the estate vests in possession or
the contingency is settled. This rule was formerly followed in New York
and has been adopted in Illinois, Minnesota, Massachusetts, Ohio,
Pennsylvania and Wisconsin. This rule, horever, is by no means entirely
satisfactory either to the estate or to those interested in the property (26
R. C. L., p. 231.). Realizing, perhaps, the defects of its anterior system, we
find upon examination of cases and authorities that New York has varied
and now requires the immediate appraisal of the postponed estate at its
clear market value and the payment forthwith of the tax on its out of
the corpus of the estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 N.
E., 782; In re Huber, 86 N. Y. App. Div., 458; 83 N. Y. Supp., 769; Estate of
Tracy, 179 N. Y., 501; 72 N. Y., 519; Estate of Brez, 172 N. Y., 609; 64 N. E.,
958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., 1079. Vide also,
Saltoun vs. Lord Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23
Eng. Rul. Cas., 888.) California adheres to this new rule (Stats. 1905, sec.
5, p. 343).
But whatever may be the rule in other jurisdictions, we hold that a
transmission by inheritance is taxable at the time of the predecessor's
death, notwithstanding the postponement of the actual possession or
enjoyment of the estate by the beneficiary, and the tax measured by the
value of the property transmitted at that time regardless of its
appreciation or depreciation.
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(c) Certain items are required by law to be deducted from the appraised
gross in arriving at the net value of the estate on which the inheritance
tax is to be computed (sec. 1539, Revised Administrative Code). In the
case at bar, the defendant and the trial court allowed a deduction of only
P480.81. This sum represents the expenses and disbursements of the
executors until March 10, 1924, among which were their fees and the
proven debts of the deceased. The plaintiff contends that the
compensation and fees of the trustees, which aggregate P1,187.28
(Exhibits C, AA, EE, PP, HH, JJ, LL, NN, OO), should also be deducted under
section 1539 of the Revised Administrative Code which provides, in part,
as follows: "In order to determine the net sum which must bear the tax,
when an inheritance is concerned, there shall be deducted, in case of a
resident, . . . the judicial expenses of the testamentary or intestate
proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair compensation for his
services (Barney vs. Saunders, 16 How., 535; 14 Law. ed., 1047). But from
this it does not follow that the compensation due him may lawfully be
deducted in arriving at the net value of the estate subject to tax. There is
no statute in the Philippines which requires trustees' commissions to be
deducted in determining the net value of the estate subject to inheritance
tax (61 C. J., p. 1705). Furthermore, though a testamentary trust has been
created, it does not appear that the testator intended that the duties of
his executors and trustees should be separated. (Ibid.; In re Vanneck's
Estate, 161 N. Y. Supp., 893; 175 App. Div., 363; In re Collard's Estate, 161
N. Y. Supp., 455.) On the contrary, in paragraph 5 of his will, the testator
expressed the desire that his real estate be handled and managed by his
executors until the expiration of the period of ten years therein provided.
Judicial expenses are expenses of administration (61 C. J., p. 1705) but, in
State vs. Hennepin County Probate Court (112 N. W., 878; 101 Minn.,
485), it was said: ". . . The compensation of a trustee, earned, not in the
administration of the estate, but in the management thereof for the
benefit of the legatees or devises, does not come properly within the class
or reason for exempting administration expenses. . . . Service rendered in
that behalf have no reference to closing the estate for the purpose of a
distribution thereof to those entitled to it, and are not required or
essential to the perfection of the rights of the heirs or legatees. . . .
Trusts . . . of the character of that here before the court, are created for
the the benefit of those to whom the property ultimately passes, are of
voluntary creation, and intended for the preservation of the estate. No
sound reason is given to support the contention that such expenses
should be taken into consideration in fixing the value of the estate for the
purpose of this tax."
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(d) The defendant levied and assessed the inheritance tax due from the
estate of Thomas Hanley under the provisions of section 1544 of the
Revised Administrative Code, as amended by section 3 of Act No. 3606.
But Act No. 3606 went into effect on January 1, 1930. It, therefore, was
not the law in force when the testator died on May 27, 1922. The law at
the time was section 1544 above-mentioned, as amended by Act No.
3031, which took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in
force at the time of the death of the decedent (26 R. C. L., p. 206; 4
Cooley on Taxation, 4th ed., p. 3461). The taxpayer can not foresee and
ought not to be required to guess the outcome of pending measures. Of
course, a tax statute may be made retroactive in its operation. Liability for
taxes under retroactive legislation has been "one of the incidents of social
life." (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup. Ct. Rep.,
44.) But legislative intent that a tax statute should operate retroactively
should be perfectly clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491;
Smietanka vs. First Trust & Savings Bank, 257 U. S., 602; Stockdale vs.
Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) "A statute
should be considered as prospective in its operation, whether it enacts,
amends, or repeals an inheritance tax, unless the language of the statute
clearly demands or expresses that it shall have a retroactive effect, . . . ."
(61 C. J., P. 1602.) Though the last paragraph of section 5 of Regulations
No. 65 of the Department of Finance makes section 3 of Act No. 3606,
amending section 1544 of the Revised Administrative Code, applicable to
all estates the inheritance taxes due from which have not been paid, Act
No. 3606 itself contains no provisions indicating legislative intent to give it
retroactive effect. No such effect can begiven the statute by this court.
The defendant Collector of Internal Revenue maintains, however, that
certain provisions of Act No. 3606 are more favorable to the taxpayer than
those of Act No. 3031, that said provisions are penal in nature and,
therefore, should operate retroactively in conformity with the provisions of
article 22 of the Revised Penal Code. This is the reason why he applied Act
No. 3606 instead of Act No. 3031. Indeed, under Act No. 3606, (1) the
surcharge of 25 per cent is based on the tax only, instead of on both the
tax and the interest, as provided for in Act No. 3031, and (2) the taxpayer
is allowed twenty days from notice and demand by rthe Collector of
Internal Revenue within which to pay the tax, instead of ten days only as
required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an
offense committed against the state which, under the Constitution, the
Executive has the power to pardon. In common use, however, this sense
has been enlarged to include within the term "penal statutes" all status
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which command or prohibit certain acts, and establish penalties for their
violation, and even those which, without expressly prohibiting certain
acts, impose a penalty upon their commission (59 C. J., p. 1110). Revenue
laws, generally, which impose taxes collected by the means ordinarily
resorted to for the collection of taxes are not classed as penal laws,
although there are authorities to the contrary. (See Sutherland, Statutory
Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468; 12 Sup. Ct.,
55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co.,
101 Pa. St., 150; State vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of
the Revised Penal Code is not applicable to the case at bar, and in the
absence of clear legislative intent, we cannot give Act No. 3606 a
retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at
a certain time and the tax may be paid within another given time. As
stated by this court, "the mere failure to pay one's tax does not render
one delinqent until and unless the entire period has eplased within which
the taxpayer is authorized by law to make such payment without being
subjected to the payment of penalties for fasilure to pay his taxes within
the prescribed period." (U. S. vs. Labadan, 26 Phil., 239.)
The defendant maintains that it was the duty of the executor to pay the
inheritance tax before the delivery of the decedent's property to the
trustee. Stated otherwise, the defendant contends that delivery to the
trustee was delivery to the cestui que trust, the beneficiery in this case,
within the meaning of the first paragraph of subsection (b) of section
1544 of the Revised Administrative Code. This contention is well taken
and is sustained. The appointment of P. J. M. Moore as trustee was made
by the trial court in conformity with the wishes of the testator as
expressed in his will. It is true that the word "trust" is not mentioned or
used in the will but the intention to create one is clear. No particular or
technical words are required to create a testamentary trust (69 C. J., p.
711). The words "trust" and "trustee", though apt for the purpose, are not
necessary. In fact, the use of these two words is not conclusive on the
question that a trust is created (69 C. J., p. 714). "To create a trust by will
the testator must indicate in the will his intention so to do by using
language sufficient to separate the legal from the equitable estate, and
with sufficient certainty designate the beneficiaries, their interest in the
ttrust, the purpose or object of the trust, and the property or subject
matter thereof. Stated otherwise, to constitute a valid testamentary trust
there must be a concurrence of three circumstances: (1) Sufficient words
to raise a trust; (2) a definite subject; (3) a certain or ascertain object;
statutes in some jurisdictions expressly or in effect so providing." (69 C. J.,
pp. 705,706.) There is no doubt that the testator intended to create a
trust. He ordered in his will that certain of his properties be kept together
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undisposed during a fixed period, for a stated purpose. The probate court
certainly exercised sound judgment in appointment a trustee to carry into
effect the provisions of the will (see sec. 582, Code of Civil Procedure).
P. J. M. Moore became trustee on March 10, 1924. On that date trust
estate vested in him (sec. 582 in relation to sec. 590, Code of Civil
Procedure). The mere fact that the estate of the deceased was placed in
trust did not remove it from the operation of our inheritance tax laws or
exempt it from the payment of the inheritance tax. The corresponding
inheritance tax should have been paid on or before March 10, 1924, to
escape the penalties of the laws. This is so for the reason already stated
that the delivery of the estate to the trustee was in esse delivery of the
same estate to the cestui que trust, the beneficiary in this case. A trustee
is but an instrument or agent for thecestui que trust (Shelton vs. King,
299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When Moore
accepted the trust and took possesson of the trust estate he thereby
admitted that the estate belonged not to him but to his cestui que
trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p. 692, n. 63). He
did not acquire any beneficial interest in the estate. He took such legal
estate only as the proper execution of the trust required (65 C. J., p. 528)
and, his estate ceased upon the fulfillment of the testator's wishes. The
estate then vested absolutely in the beneficiary (65 C. J., p. 542).
The highest considerations of public policy also justify the conclusion we
have reached. Were we to hold that the payment of the tax could be
postponed or delayed by the creation of a trust of the type at hand, the
result would be plainly disastrous. Testators may provide, as Thomas
Hanley has provided, that their estates be not delivered to their
beneficiaries until after the lapse of a certain period of time. In the case at
bar, the period is ten years. In other cases, the trust may last for fifty
years, or for a longer period which does not offend the rule against
petuities. The collection of the tax would then be left to the will of a
private individual. The mere suggestion of this result is a sufficient
warning against the accpetance of the essential to the very exeistence of
government. (Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., 1022;
Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. ed., 558; Lane County vs.
Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs.
Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles
River Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The
obligation to pay taxes rests not upon the privileges enjoyed by, or the
protection afforded to, a citizen by the government but upon the
necessity of money for the support of the state (Dobbins vs. Erie
Country, supra). For this reason, no one is allowed to object to or resist
the payment of taxes solely because no personal benefit to him can be
pointed out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43
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Law. ed., 740.) While courts will not enlarge, by construction, the
government's power of taxation (Bromley vs. McCaughn, 280 U. S., 124;
74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place upon tax
laws so loose a construction as to permit evasions on merely fanciful and
insubstantial distictions. (U. S. vs. Watts, 1 Bond., 580; Fed. Cas. No.
16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690, followed
in Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle
Bros., Wolf & Sons vs. McCoy, 21 Phil., 300; Muoz & Co. vs. Hord, 12 Phil.,
624; Hongkong & Shanghai Banking Corporation vs. Rafferty, 39 Phil.,
145; Luzon Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When proper, a tax
statute should be construed to avoid the possibilities of tax evasion.
Construed this way, the statute, without resulting in injustice to the
taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy deeply intrenched in our
tax system. Thus, no court is allowed to grant injunction to restrain the
collection of any internal revenue tax ( sec. 1578, Revised Administrative
Code; Sarasola vs. Trinidad, 40 Phil., 252). In the case of Lim Co Chui vs.
Posadas (47 Phil., 461), this court had occassion to demonstrate
trenchment adherence to this policy of the law. It held that "the fact that
on account of riots directed against the Chinese on October 18, 19, and
20, 1924, they were prevented from praying their internal revenue taxes
on time and by mutual agreement closed their homes and stores and
remained therein, does not authorize the Collector of Internal Revenue to
extend the time prescribed for the payment of the taxes or to accept
them without the additional penalty of twenty five per cent." (Syllabus,
No. 3.)
". . . It is of the utmost importance," said the Supreme Court of the United
States, ". . . that the modes adopted to enforce the taxes levied should be
interfered with as little as possible. Any delay in the proceedings of the
officers, upon whom the duty is developed of collecting the taxes, may
derange the operations of government, and thereby, cause serious
detriment to the public." (Dows vs. Chicago, 11 Wall., 108; 20 Law. ed.,
65, 66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents has been delinquent in
the payment of inheritance tax and, therefore, liable for the payment of
interest and surcharge provided by law in such cases.
The delinquency in payment occurred on March 10, 1924, the date when
Moore became trustee. The interest due should be computed from that
date and it is error on the part of the defendant to compute it one month
later. The provisions cases is mandatory (see and cf. Lim Co Chui vs.
Posadas, supra), and neither the Collector of Internal Revenuen or this
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court may remit or decrease such interest, no matter how heavily it may
burden the taxpayer.
To the tax and interest due and unpaid within ten days after the date of
notice and demand thereof by the Collector of Internal Revenue, a
surcharge of twenty-five per centum should be added (sec. 1544, subsec.
(b), par. 2, Revised Administrative Code). Demand was made by the
Deputy Collector of Internal Revenue upon Moore in a communiction
dated October 16, 1931 (Exhibit 29). The date fixed for the payment of
the tax and interest was November 30, 1931. November 30 being an
official holiday, the tenth day fell on December 1, 1931. As the tax and
interest due were not paid on that date, the estate became liable for the
payment of the surcharge.
In view of the foregoing, it becomes unnecessary for us to discuss the fifth
error assigned by the plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge
due from the estate of Thomas Hanley inaccordance with the conclusions
we have reached.
At the time of his death, the deceased left real properties valued at
P27,920 and personal properties worth P1,465, or a total of P29,385.
Deducting from this amount the sum of P480.81, representing allowable
deductions under secftion 1539 of the Revised Administrative Code, we
have P28,904.19 as the net value of the estate subject to inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised
Administrative Code, should be imposed at the rate of one per centum
upon the first ten thousand pesos and two per centum upon the amount
by which the share exceed thirty thousand pesos, plus an additional two
hundred per centum. One per centum of ten thousand pesos is P100. Two
per centum of P18,904.19 is P378.08. Adding to these two sums an
additional two hundred per centum, or P965.16, we have as primary tax,
correctly computed by the defendant, the sum of P1,434.24.
To the primary tax thus computed should be added the sums collectible
under section 1544 of the Revised Administrative Code. First should be
added P1,465.31 which stands for interest at the rate of twelve per
centum per annum from March 10, 1924, the date of delinquency, to
September 15, 1932, the date of payment under protest, a period
covering 8 years, 6 months and 5 days. To the tax and interest thus
computed should be added the sum of P724.88, representing a surhcarge
of 25 per cent on both the tax and interest, and also P10, the compromise
sum fixed by the defendant (Exh. 29), giving a grand total of P3,634.43.
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As the plaintiff has already paid the sum of P2,052.74, only the sums of
P1,581.69 is legally due from the estate. This last sum is P390.42 more
than the amount demanded by the defendant in his counterclaim. But, as
we cannot give the defendant more than what he claims, we must hold
that the plaintiff is liable only in the sum of P1,191.27 the amount stated
in the counterclaim.
The judgment of the lower court is accordingly modified, with costs
against the plaintiff in both instances. So ordered.
Avancea, C.J., Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
Villa-Real, J., concurs.
G.R. No. L-28770
January 21, 1928
DOROTEA DAIS, ET AL., petitioners,

vs.
THE COURT OF FIRST INSTANCE OF CAPIZ, ET AL., respondents.
Jose Y. Torres for petitioners.
Jose Altavas for respondents.
VILLA-REAL, J.:
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This is a petition for a writ of certiorari filed by Dorotea Dais et al., against
the Court of First Instance of Capiz, Seventeenth Judicial District, Jose
Altavas and Jose Morente, in which it is prayed that an order be issued to
the respondent judge requiring him to certify and transmit to this court an
exact and complete transcription of the record, decision and proceedings
in cadastral proceeding No. 18 (G. L. R. O. Record No. 714), entitled the
Director of Lands vs. Justo Abiertas et al., concerning the portion referring
to lots Nos. 626, 1132 and 1136, for review by this Supreme Court; and
that after hearing both parties, judgment rendered declaring the judicial
orders of the Court of First Instance of Capiz dated July 25, 1927, August
8, 1927, and September 22, 1927, as well as the judgment rendered by
the same court on September 29, 1927, and all other proceedings had in
connection therewith, void and of no effect.
The facts appearing from the pleadings and documentary evidence
attached thereto, presented in this case, are hereinafter set forth in the
order of their concurrence.
In course of the intestate proceedings for the settlement of the estate of
the deceased Separion Dais, civil case No. 988 of the Court of First
Instance of Capiz, Manuel Arnaldo was appointed administrator of the
estate. For the payment of some of the debts of the deceased, said
administrator was authorized to sell certain parcels of land of said estate;
whereupon he sold lots Nos. 1132 and 1136 in the form prescribed by the
law, to Antonio Habana, which sale was approved by the court of February
15, 1926. The herein petitioners or some of them objected to such
approval and filed a motion for reconsideration on March 6, 1926, which
was denied on March 10, 1926. They appealed accordingly on April 6,
1927, and the same was denied on August 1, 1927, on the ground that it
was not presented within the time prescribed by section 783 of the Code
of Civil Procedure, because more than twenty days has elapsed since the
orders appealed from had been entered. It appears from the order
denying said appeal that the appellants contend that the time within
which said appeal should be taken must be counted from the date of the
notification of said orders and not from the date on which they were
entered.
On May 20, 1926, Manuel Arnaldo filed an answer in the cadastral
proceeding No. 18 (G. L. R. O. Record No. 714), in the name of Separion
Dais's heirs, claiming title to lots Nos. 626, 1132 and 1136 of said
proceeding. Jose Morente also filed an answer claiming title, lots Nos.
1132 and 1136. Jose Altavas also filed an answer claiming title to lot No.
626.
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Before the hearing of the case, and in pursuant of a motion of the

claimants Jose Altavas and Jose Morente, respectively, with the consent of
Manuel Arnaldo, as judicial administrator of Serapion Dais's intestate
estate, the respondent court ordered the answers presented by said
administrator in the name of Separion Dais's heirs with respect to lots
Nos. 626, and 1136 stricken out.
Dissatisfied with this order striking out their answer, the heirs of Separion
Dais presented a motion for reconsideration, objecting to the motions to
strike out their answer and praying that the order of July 25, 1927,
granting said motions, be annulled. The motion for reconsideration being
denied, the movants, heirs Separion Dais, took formal exception to said
order, and gave notice of their intention to appeal to this court, and, to
perfect their appeal, filed the proper bill of exceptions, which was
disapproved by the court on the motion of claimants Jose Altavas and Jose
Morente.
After the aforementioned answers presented by the judicial administrator
Manuel Arnaldo on behalf of the heirs of Serapion Dais anent lots Nos.
626, 1132 and 1136, had been stricken from the record of the cadastral
proceeding, the court proceeded to the hearing of the answers of Jose
Altavas and Jose Morente in regard to the said lots, after which the
respondent court rendered a judgment on September 29, 1927,
adjudicating lot No. 626 to the spouses Jose Altavas and Socorro Laserna,
and lots Nos. 1132 and 1136 to Jose Morente and Patria Altavas.
There are two principal questions to de determined in the present
instance, to wit:
1. Have the petitioners the right to intervene in a cadastral proceeding for
the purpose of objecting to the striking out of an answer filed by the
judicial administrator of the intestacy of the petitioners' predecessor in
interest, claiming several parcels of land as the property of said estate,
when the aforementioned administrator consents in its being stricken out?
2. And in case they have, has the respondent judge exceeded his powers
in ordering that the answer be stricken from the record, over the objection
of the said petitioners?
In relation to the first question, article 657 of the Civil Code provides:
ART. 657. The rights to the succession of a person are transmitted
from the moment of his death.
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ART. 661. Heirs succeed to all the rights and obligations of the
decedent by the mere fact of his death.
Interpreting the above quoted legal provisions, this court has held in
various decisions that the right to the succession of a person are
transmitted from the moment of his death; in other words, the heirs
immediately succeed to the dominion, ownership and possession of the
property of their predecessor. (Quison vs. Salud, 12 Phil., 109;
Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil.,
434; Beltran vs. Doriano, 32 Phil., 66; Bondad vs. Bondad, 34 Phil., 232;
Velazco vs. Vizmanos, 45 Phil., 675; Fule vs. Fule, 46 Phil., 317.) The fact
that the law provides for the appointment of a legal administrator for the
liquidation of the deceased's property, and the partition of his hreditas
jacens among his heirs, does not deprive the heirs of the right intervene
in the administration of said property for the protection of their interests.
On the contrary section 714 of the Code of Civil Procedure, in connection
with section 722 of the same Code, requires that the written consent and
approval of the heirs be obtained for the sale of the deceased's property
in order to pay his debts and the costs of administration. This provision
shows that, notwithstanding the appointment of a judicial administrator,
the heirs have a right to intervene when they believe the administrator's
acts are prejudicial to their interest. And it cannot be said that the
administrator answers with his bond for any damage he may cause to the
interests of the estate, since such bond might not be sufficient to cover
said damages.
For the reasons above stated, we are of opinion that the heirs have a right
to intervene in a cause involving certain property of the
decedent's hreditas jacens whenever they believe the legal
administrator's acts are prejudicial to their interests.
The second question to determine is whether or not the respondent court
exceeded its jurisdiction in ordering that the answers filed by the legal
administrator in the name of the heirs be stricken out, said administrator
having consented against the opposition of said heirs.
In determining the first questions, we have seen that the heirs have a
right intervene when they believe that the acts of the judicial
administrator of the property of the hreditas jacens of their predecessor
in interest are prejudicial to their interests. The petitioners have made use
of this right in the present proceedings, opposing the dismissal and taking
exception to the order granting the motion filed that end.
The answers in cadastral proceedings partake of the character of an
action to recover title, as real rights are claimed therein. According to
P a g e 44 | 111

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: When Succession
section 10 of Act No. 2347, the provisions of the Code of Civil Procedure
are of a suppletory nature in land registration cases. Since Act No. 496,
Known as Land Registration Act, contains no special rule as to the
procedure to be followed in impugning the sufficiency of the answers in
cadastral proceedings nor in determining whether or not they must be
dismissed, the provisions of the Code of Civil Procedure are applicable.
According to the said Code, complaints can only be dismissed by a failure
to prosecute, by default, by abandonment, or by defects provided by the
law as grounds for a demurrer (Secs. 101 and 127, Act No. 190). When
two persons claim the ownership of one and the same cadastral lot, both
of them are claimants and opponents at the same time, and their
respective answers cannot be dismissed by the court without the
presence of any of said circumstances; and a motion for dismissal that is
not based on any of said grounds does not confer jurisdiction on the court
to dismiss the complaint, and if it does so, it exceeds its powers.
In this case, the motion presented by Jose Altavas, claimant of lot No. 626,
praying for the dismissal of the answer filed by the judicial administrator,
Manuel Arnaldo, on behalf of the heirs of the deceased Serapion Dais,
with reference to the same lot, is based on the allegation that said lot
never pertained to the mass of property of said decedent, and that it had
never been in the possession of said administrator. The motion presented
by Jose Morente for the dismissal of the answers presented by the judicial
administrator of the intestates estate of Serapion Dais on behalf of the
latter's heirs, with reference to lots Nos. 1132 and 1136, is based on the
claim that said lots were sold by the said administrator with the approval
and authority of the court. Neither of these grounds is found among those
mentioned by the present law of civil procedure as causes for dismissal. It
is true that the judicial administrator agreed to the dismissal asked for,
but the heirs, in whose made he had presented said answers, objected to
it, and presented a motion for reconsideration in time, which was denied
by the respondent court. In view of such opposition of the heirs, who are
interested parties in the case, the court should not have ordered the
dismissal of the said answers, but should have proceeded to the trial on
the merits of the lots in question with the intervention of said heirs. In
ordering the dismissal of the answers presented by the judicial
administrator of the intestate estate of Serapion Dais, in the name of the
latter's heirs, notwithstanding their opposition and for a cause not
provided by law as a ground for dismissal, the respondent court did really
exceed its jurisdiction; because it is not enough that a court have
jurisdiction over the subject matter in litigation and the parties, but it is
necessary that it have authority in and over each and every one of the
essential particulars of the case.
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: When Succession
In the case of Larrobis vs. Wislizenus and Smith, Bell & Co. (42 Phil., 401),
this court laid down the doctrine that the erroneous exercise of
interlocutory powers is irregular and justifies the institution of certiorari
proceedings.
And on page 104 of volume 11 of Corpus Juris, the following rule may be
found:
* * * But it has been that any departure from the recognized and
established requirements of law, however the apparent adherence
to mere form in method of procedure, which has the effect to
deprive one of a constitutional right is as much an excess of
jurisdiction as where is an inceptive lack of power.
In dismissing the answer presented by the judicial administrator, Manuel
Arnaldo in the name of the heirs of the deceased Serapion Dais, over their
objection, and in finally deciding the case on the merits awarding the
controverted to their adversaries, without hearing said heirs, the court not
only exceeded its jurisdiction, but also deprived them of their
constitutional right to be heard before being deprived of their property
rights, and its proceedings were in this sense, void and of no effect.
The appeals taken by the petitioners from the orders which are the
subject of this proceeding were denied by the respondent judge; hence,
said petitioners have no other adequate and speedy remedy in law to
protect their rights other than a writ of certiorari.
It is, therefore, proper to grant, as we do hereby grant, the remedy
sought, and the decree of the Court of First Instance of Capiz of July 25,
1927, ordering the dismissal of the answers concerning in cadastral
proceeding No. 18 (G. L. R. O. Record No. 714) is set aside, as well as the
orders dated August 8, 197, and September 22, 1927, denying the motion
for reconsideration and the appeal respectively, and the judgment of the
same court dated September 29, 1927, awarding lot no. 626 to the
spouses Jose Altavas and Socorro Laserna and the lots Nos. 1132 and
1136 to the spouses Jose Morente and Patria Altavas, with all the orders
rendered in connection with said decision, without costs. So ordered.
Johnson, Street, Malcolm, Ostrand, Johns and Romualdez, JJ., concur.
P a g e 46 | 111

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: When Succession
G.R. No. 75884 September 24, 1987

JULITA GO ONG, FOR HERSELF AND AS JUDICIAL GUARDIAN OF
STEVEN GO ONG, petitioners,
vs.
THE HON. COURT OF APPEALS, ALLIED BANKING CORPORATION
and the CITY SHERIFF OF QUEZON CITY, respondents.
PARAS, J.:
This is a petition for review on certiorari of the March 21, 1986
Decision * of the Court of Appeals in AC-G.R. CV No. 02635, "Julita Ong
etc. vs. Allied Banking Corp. et al." affirming, with modification, the
January 5, 1984 Decision of the Regional Trial Court of Quezon City in Civil
Case No. Q-35230.
The uncontroverted facts of this case, as found by the Court of Appeals,
are as follows:
...: Two (2) parcels of land in Quezon City Identified as Lot No.
12, Block 407, Psd 37326 with an area of 1960.6 sq. m. and
Lot No. 1, Psd 15021, with an area of 3,660.8 sq. m. are
covered by Transfer Certificate of Title No. 188705 in the
name of "Alfredo Ong Bio Hong married to Julita Go Ong "(Exh.
D). Alfredo Ong Bio Hong died on January 18, 1975 and Julita
P a g e 47 | 111

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: When Succession
Go Ong was appointed administratrix of her husband's estate

in Civil Case No. 107089. The letters of administration was
registered on TCT No. 188705 on October 23, 1979.
Thereafter, Julita Go Ong sold Lot No. 12 to Lim Che Boon, and
TCT No. 188705 was partially cancelled and TCT No. 262852
was issued in favor of Lim Che Boon covering Lot No. 12 (Exh.
D-4). On June 8, 1981 Julita Go Ong through her attorney-infact Jovita K. Yeo (Exh. 1) mortgaged Lot No. 1 to the Allied
Banking Corporation to secure a loan of P900,000.00 obtained
by JK Exports, Inc. The mortgage was registered on TCT No.
188705 on the same date with the following notation: "...
mortgagee's consent necessary in case of subsequent
alienation or encumbrance of the property other conditions
set forth in Doc. No. 340, Page No. 69, Book No. XIX, of the
Not. Public of Felixberto Abad". On the loan there was due the
sum of P828,000.00 and Allied Banking Corporation tried to
collect it from Julita Go Ong, (Exh. E). Hence, the complaint
alleging nullity of the contract for lack of judicial approval
which the bank had allegedly promised to secure from the
court. In response thereto, the bank averred that it was
plaintiff Julita Go Ong who promised to secure the court's
approval, adding that Julita Go Ong informed the defendant
that she was processed the sum of P300,000.00 by the JK
Exports, Inc. which will also take charge of the interest of the
loan.
Concluding, the trial court ruled:
Absent (of) any evidence that the property in
question is the capital of the deceased husband
brought into the marriage, said property should be
presumed as acquired during the marriage and,
therefore, conjugal property,
After the dissolution of the marriage with the
death of plaintiff's husband, the plaintiff acquired,
by law, her conjugal share, together with the
hereditary rights thereon. (Margate vs. Rabacal, L14302, April 30, 1963). Consequently, the
mortgage constituted on said property, upon
express authority of plaintiff, notwithstanding the
lack of judicial approval, is valid, with respect to
her conjugal share thereon, together with her
hereditary rights.
P a g e 48 | 111

Occurs (Art 777)
: When Succession
On appeal by petitioner, respondent Court of Appeals affirmed, with

modification, the appealed decision (Record, pp. 19-22). The dispositive
portion of the appellate court's decision reads:
WHEREFORE, with the modification that the extrajudicial
foreclosure proceedings instituted by defendant against
plaintiff shall be held in abeyance to await the final result of
Civil Case No. 107089 of the Court of First Instance of Manila,
6th Judicial District Branch XXXII, entitled "IN THE MATTER OF
THE INTESTATE ESTATE OF THE LATE ALFREDO ONG BIO:
JULITA GO ONG, ADMINISTRATRIX". In pursuance with which
the restraining order of the lower court in this case restraining
the sale of the properties levied upon is hereby ordered to
continue in full force and effect coterminous with the final
result of Civil Case No. 107089, the decision appealed from is
hereby affirmed. Costs against plaintiff-appellant.
SO ORDERED.
On April 8, 1986, petitioner moved for the reconsideration of the said
decision (Ibid., pp. 24-29), but in a Resolution dated September 11, 1986,
respondent court denied the motion for lack of merit (Ibid., p. 23). Hence,
the instant petition (Ibid., pp. 6-17).
The Second Division of this Court, in a Resolution dated November 19,
1986 (Rollo, p. 30), without giving due course to the petition, resolved to
require private respondent to comment thereon and it did on February 19,
1987 (Ibid., pp. 37-42). Thereafter, in a Resolution dated April 6, 1987, the
petition was given due course and the parties were required to file their
respective memoranda (Ibid., p. 43).
Petitioner filed her Memorandum on May 13, 1987 (Ibid., pp. 45-56), while
private respondent filed its Memorandum on May 20, 1987 (Ibid., pp. 6268).
The sole issue in this case is
WHETHER OR NOT THE MORTGAGE CONSTITUTED OVER THE PARCEL OF
LAND UNDER PETITIONER'S ADMINISTRATION IS NULL AND VOID FOR
WANT OF JUDICIAL APPROVAL.
The instant petition is devoid of merit.
P a g e 49 | 111

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The well-settled rule that the findings of fact of the trial court are entitled
to great respect, carries even more weight when affirmed by the Court of
Appeals as in the case at bar.
In brief, the lower court found: (1) that the property under the
administration of petitioner the wife of the deceased, is a community
property and not the separate property of the latter; (2) that the
mortgage was constituted in the wife's personal capacity and not in her
capacity as administratrix; and (3) that the mortgage affects the wife's
share in the community property and her inheritance in the estate of her
husband.
Petitioner, asserting that the mortgage is void for want of judicial
approval, quoted Section 7 of Rule 89 of the Rules of Court and cited
several cases wherein this Court ruled that the regulations provided in the
said section are mandatory.
While petitioner's assertion may have merit insofar as the rest of the
estate of her husband is concerned the same is not true as regards her
conjugal share and her hereditary rights in the estate. The records show
that petitioner willingly and voluntarily mortgaged the property in
question because she was processed by JK Exports, Inc. the sum of
P300,000.00 from the proceeds of the loan; and that at the time she
executed the real estate mortgage, there was no court order authorizing
the mortgage, so she took it upon herself, to secure an order.
Thus, in confirming the findings of the lower court, as supported by law
and the evidence, the Court of Appeals aptly ruled that Section 7 of Rule
89 of the Rules of Court is not applicable, since the mortgage was
constituted in her personal capacity and not in her capacity as
administratrix of the estate of her husband.
Nevertheless, petitioner, citing the cases of Picardal, et al. vs. Lladas (21
SCRA 1483) and Fernandez, et al. vs. Maravilla (10 SCRA 589), further
argues that in the settlement proceedings of the estate of the deceased
spouse, the entire conjugal partnership property of the marriage is under
administration. While such may be in a sense true, that fact alone is not
sufficient to invalidate the whole mortgage, willingly and voluntarily
entered into by the petitioner. An opposite view would result in an
injustice. Under similar circumstances, this Court applied the provisions of
Article 493 of the Civil Code, where the heirs as co-owners shall each
have the full ownership of his part and the fruits and benefits pertaining
thereto, and he may therefore alienate, assign or mortgage it, and even
effect of the alienation or mortgage, with respect to the co-owners, shall
be limited to the portion which may be allotted to him in the division upon
P a g e 50 | 111

Occurs (Art 777)
: When Succession
the termination of the co-ownership (Philippine National Bank vs. Court of

Appeals, 98 SCRA 207 [1980]).
Consequently, in the case at bar, the trial court and the Court of Appeals
cannot be faulted in ruling that the questioned mortgage constituted on
the property under administration, by authority of the petitioner, is valid,
notwithstanding the lack of judicial approval, with respect to her conjugal
share and to her hereditary rights. The fact that what had been
mortgaged was in custodia legis is immaterial, insofar as her conjugal
share and hereditary share in the property is concerned for after all, she
was the ABSOLUTE OWNER thereof. This ownership by hers is not
disputed, nor is there any claim that the rights of the government (with
reference to taxes) nor the rights of any heir or anybody else have been
prejudiced for impaired. As stated by Associate Justice (later Chief Justice)
Manuel Moran in Jakosalem vs. Rafols, et al., 73 Phil. 618
The land in question, described in the appealed decision,
originally belonged to Juan Melgar. The latter died and the
judicial administration of his estate was commenced in 1915
and came to a close on December 2, 1924, only. During the
pendency of the said administration, that is, on July 5, 1917,
Susana Melgar, daughter of the deceased Juan Melgar, sold
the land with the right of repurchase to Pedro Cui, subject to
the stipulation that during the period for the repurchase she
would continue in possession of the land as lessee of the
purchase. On December 12, 1920, the partition of the estate
left by the deceased Juan Melgar was made, and the land in
question was adjudicated to Susana Melgar. In 1921, she
conveyed, in payment of professional fees, one-half of the
land in favor of the defendant-appellee Nicolas Rafols, who
entered upon the portion thus conveyed and has been in
possession thereof up to the present. On July 23, 1921, Pedro
Cui brought an action to recover said half of the land from
Nicolas Rafols and the other half from the other defendants,
and while that case was pending, or about August 4, 1925,
Pedro Cui donated the whole land in question to Generosa
Teves, the herein plaintiff-appellant, after trial, the lower court
rendered a decision absolving Nicolas Rafols as to the one-half
of the land conveyed to him by Susana Melgar, and declaring
the plaintiff owner of the other half by express
acknowledgment of the other defendants. The plaintiff
appealed from that part of the judgment which is favorable to
Nicolas Rafols.
P a g e 51 | 111

Occurs (Art 777)
: When Succession
The lower court absolved Nicolas Rafols upon the theory that
Susana Melgar could not have sold anything to Pedro Cui
because the land was then in custodia legis, that is, under
judicial administration. This is error. That the land could not
ordinary be levied upon while in custodia legis,does not mean
that one of the heirs may not sell the right, interest or
participation which he has or might have in the lands under
administration. The ordinary execution of property in custodia
legis is prohibited in order to avoid interference with the
possession by the court. But the sale made by an heir of his
share in an inheritance, subject to the result of the pending
administration, in no wise stands in the way of such
administration.
The reference to judicial approval in Sec. 7, Rule 89 of the Rules of Court
cannot adversely affect the substantiverights of private respondent to
dispose of her Ideal [not inchoate, for the conjugal partnership ended with
her husband's death, and her hereditary rights accrued from the moment
of the death of the decedent (Art. 777, Civil Code) share in the co-heirship
and/or co-ownership formed between her and the other heirs/co-owners
(See Art. 493, Civil Code, supra.). Sec. 7, Art. 89 of the Civil Code applies
in a case where judicial approval has to be sought in connection with, for
instance, the sale or mortgage of property under administration for the
payment, say of a conjugal debt, and even here, the conjugal and
hereditary shares of the wife are excluded from the requisite judicial
approval for the reason already adverted to hereinabove, provided of
course no prejudice is caused others, including the government.
Moreover, petitioner is already estopped from questioning the mortgage.
An estoppel may arise from the making of a promise even though without
consideration, if it was intended that the promise should be relied upon
and in fact it was relied upon, and if a refusal to enforce it would be
virtually to sanction the perpetration of fraud or would result in other
injustice (Gonzalo Sy Trading vs. Central Bank, 70 SCRA 570).
PREMISES CONSIDERED, the instant petition is hereby DENIED and the
assailed decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
Footnotes
P a g e 52 | 111

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: When Succession
* Penned by Justice Leonor Ines Luciano, concurred in by

Justices Ramon G. Gaviola, Jr. and Ma. Rosario Quetulio-Losa.
G.R. No. L-15499
February 28, 1962
ANGELA M. BUTTE, plaintiff-appellant,

vs.
MANUEL UY and SONS, INC., defendant-appellee.
Delgado, Flores and Macapagal for plaintiff-appellant.
Pelaez and Jalandoni for defendant-appellee.
REYES, J.B.L., J.:
Appeal from a decision of the Court of First instance of Manila dismissing
the action for legal redemption filed by plaintiff-appellant.
It appears that Jose V. Ramirez, during his lifetime, was a co-owner of a
house and lot located at Sta. Cruz, Manila, as shown by Transfer
Certificate of Title No. 52789, issued in the name of the following coowners: Marie Garnier Vda. de Ramirez, 1/6; Jose V. Ramirez, 1/6; Jose E.
Ramirez, 1/6; Rita de Ramirez, 1/6; and Jose Ma. Ramirez, 1/6.
On October 20, 1951, Jose V. Ramirez died. Subsequently, Special
Proceeding No. 15026 was instituted to settle his estate, that included the
one-sixth (1/6) undivided share in the aforementioned property. And
although his last will and testament, wherein he bequeathed his estate to
his children and grandchildren and one-third (1/3) of the free portion to
Mrs. Angela M. Butte, hereinafter referred to as plaintiff-appellant, has
been admitted to probate, the estate proceedings are still pending up to
the present on account of the claims of creditors which exceed the assets
of the deceased. The Bank of the Philippine Islands was appointed judicial
administrator.
Meanwhile, on December 9, 1958, Mrs. Marie Garnier Vda. de Ramirez,
one of the co-owners of the late Jose V. Ramirez in the Sta. Cruz property,
sold her undivided 1/6 share to Manuel Uy & Sons, Inc. defendantappellant herein, for the sum of P500,000.00. After the execution by her
attorney-in-fact, Mrs. Elsa R. Chambers, of an affidavit to the effect that
formal notices of the sale had been sent to all possible redemptioners, the
deed of sale was duly registered and Transfer Certificate of Title No.
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Occurs (Art 777)
: When Succession
52789 was cancelled in lieu of which a new one was issued in the name of
the vendee and the other-co-owners.
On the same day (December 9, 1958), Manuel Uy & Sons, Inc. sent a
letter to the Bank of the Philippine Islands as judicial administrator of the
estate of the late Jose V. Ramirez informing it of the above-mentioned
sale. This letter, together with that of the bank, was forwarded by the
latter to Mrs. Butte c/o her counsel Delgado, Flores & Macapagal, Escolta,
Manila, and having received the same on December 10, 1958, said law
office delivered them to plaintiff-appellant's son, Mr. Miguel Papa, who in
turn personally handed the letters to his mother, Mrs. Butte, on December
11 and 12, 1958. Aside from this letter of defendant-appellant, the
vendor, thru her attorney-in-fact Mrs. Chambers, wrote said bank on
December 11, 1958 confirming vendee's letter regarding the sale of her
1/6 share in the Sta. Cruz property for the sum of P500,000.00. Said letter
was received by the bank on December 15, 1958 and having endorsed it
to Mrs. Butte's counsel, the latter received the same on December 16,
1958. Appellant received the letter on December 19, 1958.
On January 15, 1959, Mrs. Angela M. Butte, thru Atty. Resplandor
Sobretodo, sent a letter and a Philippine National Bank cashier's check in
the amount of P500,000.00 to Manuel Uy & Sons, Inc. offering to redeem
the 1/6 share sold by Mrs. Marie Garnier Vda. de Ramirez. This tender
having been refused, plaintiff on the same day consigned the amount in
court and filed the corresponding action for legal redemption. Without
prejudice to the determination by the court of the reasonable and fair
market value of the property sold which she alleged to be grossly
excessive, plaintiff prayed for conveyance of the property, and for actual,
moral and exemplary damages.
After the filing by defendant of its answer containing a counterclaim, and
plaintiff's reply thereto, trial was held, after which the court rendered
decision on May 13, 1959, dismissing plaintiff's complaint on the grounds
that she has no right to redeem the property and that, if ever she had
any, she exercised the same beyond the statutory 30-day period for legal
redemptions provided by the Civil Code. The counterclaim of defendant
for damages was likewise dismissed for not being sufficiently established.
Both parties appealed directly to this Court.
Based on the foregoing facts, the main issues posed in this appeal are: (1)
whether or not plaintiff-appellant, having been bequeathed 1/3 of the free
portion of the estate of Jose V. Ramirez, can exercise the right of legal
redemption over the 1/6 share sold by Mrs. Marie Garnier Vda. de Ramirez
despite the presence of the judicial administrator and pending the final
distribution of her share in the testate proceedings; and (2) whether or
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: When Succession
not she exercised the right of legal redemption within the period
prescribed by law.
The applicable law involved in the present case is contained in Articles
1620, p. 1, and 1623 of the Civil Code of the Philippines, which read as
follows:
ART. 1620. A co-owner of a thing may exercise the right of
redemption in case the shares of all the other-co-owners or of any of
them, are sold to a third person. If the price of the alienation is
grossly excessive, the redemptioner shall pay only a reasonable
one.
Should two or more co-owners desire to exercise the right of
redemption, they may only do so in proportion to the share they
may respectively have in the thing owned in common. (1522a)
ART. 1623. The right of legal predemption or redemption shall not be
exercised except within thirty days from the notice in writing by the
respective vendor, or by the vendor, as the case may be. The deed
of sale shall not be accorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written
notice thereof at all possible redemptioners.
The right of redemption of co-owners excludes that of adjoining
owners. (1524a)
That the appellant Angela M. Butte is entitled to exercise the right of legal
redemption is clear. As testamentary heir of the estate of J.V. Ramirez, she
and her co-heirs acquired an interest in the undivided one-sixth (1/6)
share owned by her predecessor (causante) in the Santa Cruz property,
from the moment of the death of the aforesaid co-owner, J.V. Ramirez. By
law, the rights to the succession of a deceased persons are transmitted to
his heirs from the moment of his death, and the right of succession
includes all property rights and obligations that survive the decedent.
ART. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
(659)
ART. 777. The rights to the succession are transmitted from the
moment of the death of the decedent. (657a)
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: When Succession
ART. 947. The legatee or devisee acquires a right to the pure and
simple legacies or devisees from the death of the testator, and
transmits it to his heirs. (881a)
The principle of transmission as of the time of the predecessor's death is
basic in our Civil Code, and is supported by other related articles. Thus,
the capacity of the heir is determined as of the time the decedent died
(Art. 1034); the legitime is to be computed as of the same moment(Art.
908), and so is the in officiousness of the donationinter vivos (Art. 771).
Similarly, the legacies of credit and remission are valid only in the amount
due and outstanding at the death of the testator (Art. 935),and the fruits
accruing after that instant are deemed to pertain to the legatee (Art. 948).
As a consequence of this fundamental rule of succession, the heirs of Jose
V. Ramirez acquired his undivided share in the Sta. Cruz property from the
moment of his death, and from that instant, they became co-owners in
the aforesaid property, together with the original surviving co-owners of
their decedent (causante). A co-owner of an undivided share is
necessarily a co-owner of the whole. Wherefore, any one of the Ramirez
heirs, as such co-owner, became entitled to exercise the right of legal
redemption (retracto de comuneros) as soon as another co-owner (Maria
Garnier Vda. de Ramirez) had sold her undivided share to a stranger,
Manuel Uy & Sons, Inc. This right of redemption vested exclusively in
consideration of the redemptioner's share which the law nowhere takes
into account.
The situation is in no wise altered by the existence of a judicial
administrator of the estate of Jose V. Ramirez while under the Rules of
Court the administrator has the right to the possession of the real and
personal estate of the deceased, so far as needed for the payment of the
decedent's debts and the expenses of administration (sec. 3, Rule 85),
and the administrator may bring or defend actions for the recovery or
protection of the property or rights of the deceased (sec. 2, Rule 88), such
rights of possession and administration do not include the right of legal
redemption of the undivided share sold to Uy & Company by Mrs. Garnier
Ramirez. The reason is obvious: this right of legal redemption only came
into existence when the sale to Uy & Sons, Inc. was perfected, eight (8)
years after the death of Jose V. Ramirez, and formed no part of his estate.
The redemption right vested in the heirs originally, in their individual
capacity, they did not derivatively acquire it from their decedent, for when
Jose V. Ramirez died, none of the other co-owners of the Sta. Cruz
property had as yet sold his undivided share to a stranger. Hence, there
was nothing to redeem and no right of redemption; and if the late Ramirez
had no such right at his death, he could not transmit it to his own heirs.
Much less could Ramirez acquire such right of redemption eight years
P a g e 56 | 111

Occurs (Art 777)
: When Succession
after his death, when the sale to Uy & Sons, Inc. was made; because
death extinguishes civil personality, and, therefore, all further juridical
capacity to acquire or transmit rights and obligations of any kind (Civil
Code of the Phil., Art. 42).
It is argued that the actual share of appellant Mrs. Butte in the estate of
Jose V. Ramirez has not been specifically determined as yet, that it is still
contingent; and that the liquidation of estate of Jose V. Ramirez may
require the alienation of the decedent's undivided portion in the Sta. Cruz
property, in which event Mrs. Butte would have no interest in said
undivided portion. Even if it were true, the fact would remain that so long
as that undivided share remains in the estate, the heirs of Jose V. Ramirez
own it, as the deceased did own it before his demise, so that his heirs are
now as much co-owners of the Sta. Cruz property as Jose V. Ramirez was
himself a co-owner thereof during his lifetime. As co-owners of the
property, the heirs of Jose V. Ramirez, or any one of them, became
personally vested with right of legal redemption as soon as Mrs. Garnier
sold her own pro-indiviso interest to Uy & Sons. Even if subsequently, the
undivided share of Ramirez (and of his heirs) should eventually be sold to
satisfy the creditors of the estate, it would not destroy their ownership of
it before the sale, but would only convey or transfer it as in turn sold (of it
actually is sold) to pay his creditors. Hence, the right of any of the
Ramirez heirs to redeem the Garnier share will not be retroactively
affected. All that the law requires is that the legal redemptioner should be
a co-owner at the time the undivided share of another co-owner is sold to
a stranger. Whether or not the redemptioner will continue being a coowner after exercising the legal redemptioner is irrelevant for the
purposes of law.
Nor it can be argued that if the original share of Ramirez is sold by the
administrator, his heirs would stand in law as never having acquired that
share. This would only be true if the inheritance is repudiated or the heir's
quality as such is voided. But where the heirship is undisputed, the
purchaser of hereditary property is not deemed to have acquired the title
directly from the deceased Ramirez, because a dead man can not convey
title, nor from the administrator who owns no part of the estate; the
purchaser can only derive his title from the Ramirez heirs, represented by
the administrator, as their trustee or legal representative.
The right of appellant Angela M. Butte to make the redemption being
established, the next point of inquiry is whether she had made or
tendered the redemption price within the 30 days from notices as
prescribed by law. This period, be it noted, is peremptory, because the
policy of the law is not to leave the purchaser's title in uncertainty beyond
the established 30-day period. In considering whether or not the offer to
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Occurs (Art 777)
: When Succession
redeem was timely, we think that the notice given by the vendee (buyer)
should not be taken into account. The text of Article 1623 clearly and
expressly prescribes that the thirty days for making the redemption are to
be counted from notice in writing by the vendor. Under the old law (Civ.
Code of 1889, Art. 1524), it was immaterial who gave the notice; so long
as the redeeming co-owner learned of the alienation in favor of the
stranger, the redemption period began to run. It is thus apparent that the
Philippine legislature in Article 1623 deliberately selected a particular
method of giving notice, and that method must be deemed exclusive (39
Am. Jur., 237; Payne vs. State, 12 S.W. [2d] 528). As ruled in Wampler vs.
Lecompte, 150 Atl. 458 (affd. in 75 Law Ed. [U.S.] 275)
Why these provisions were inserted in the statute we are not
informed, but we may assume until the contrary is shown, that a
state of facts in respect thereto existed, which warranted the
legislature in so legislating.
The reasons for requiring that the notice should be given by the seller,
and not by the buyer, are easily divined. The seller of an undivided
interest is in the best position to know who are his co-owners that under
the law must be notified of the sale. Also, the notice by the seller removes
all doubts as to the fact of the sale, its perfection; and its validity, the
notice being a reaffirmation thereof, so that the party need not entertain
doubt that the seller may still contest the alienation. This assurance would
not exist if the notice should be given by the buyer.
The notice which became operative is that given by Mrs. Chambers, in her
capacity as attorney-in-fact of the vendor Marie Garnier Vda. de Ramirez.
Under date of December 11, 1958, she wrote the Administrator Bank of
the Philippine Islands that her principal's one-sixth (1/6) share in the Sta.
Cruz property had been sold to Manuel Uy & Sons, Inc. for P500,000.00.
The Bank received this notice on December 15, 1958, and on the same
day endorsed it to Mrs. Butte, care of Delgado, Flores and Macapagal (her
attorneys), who received the same on December 16, 1958. Mrs. Butte
tendered redemption and upon the vendee's refusal, judicially consigned
the price of P500,000.00 on January 15, 1959. The latter date was the last
one of the thirty days allowed by the Code for the redemption, counted by
excluding December 16, 1958 and including January 15, 1959, pursuant to
Article 13 of the Civil Code. Therefore, the redemption was made in due
time.
The date of receipt of the vendor's notice by the Administrator Bank
(December 15) can not be counted as determining the start of thirty days;
for the Administrator of the estate was not a proper redemptioner, since,
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Occurs (Art 777)
: When Succession
as previously shown, the right to redeem the share of Marie Garnier did
not form part of the estate of Jose V. Ramirez.
We find no jurisdiction for appellant's claim that the P500,000,00. paid by
Uy & Sons, Inc. for the Garnier share is grossly excessive. Gross excess
cannot be predicated on mere individual estimates of market price by a
single realtor.
The redemption and consignation having been properly made, the Uy
counterclaim for damages and attorney's fees predicated on the
assumption that plaintiff's action was clearly unfounded, becomes
untenable.
PREMISES CONSIDERED, the judgment appealed from is hereby reversed
and set aside, and another one entered:
(a) Declaring the consignation of P500,000,00 made by appellant
Angela M. Butte duly and properly made;
(b) Declaring that said appellant properly exercised in due time the
legal redemption of the one-sixth (1/6) undivided portion of the land
covered by Certificate of Title No. 59363 of the Office of the Register
of Deeds of the City of Manila, sold on December 9, 1958 by Marie
Garnier Vda. de Ramirez to appellant Manuel Uy & Sons, Inc.
(c) Ordering appellant Manuel Uy & Sons, Inc. to accept the
consigned price and to convey to Angela M. Butte the undivided
portion above referred to, within 30 days from the time our decision
becomes final, and subsequently to account for the rentals and
fruits of the redeemed share from and after January 15, 1958, until
its conveyance; and.
(d) Ordering the return of the records to the court of origin for
further proceedings conformable to this opinion.
Without finding as to costs.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and
Dizon, JJ., concur.
Paredes and De Leon, JJ., took no part.
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Occurs (Art 777)
: When Succession
RODOLFO NOCEDA, petitioner, vs. COURT OF

AURORA ARBIZO DIRECTO, respondents.
APPEALS
and
DECISION
GONZAGA-REYES, J.:
This petition for review on certiorari under Rule 45 of the Rules of
Court seeks to reverse the decision dated March 31, 1995 of the
respondent Court of Appeals[1] in CA GR CV No. 38126, affirming with
modification the decision of the Regional Trial Court, Branch 71, of Iba,
Zambales,[2] in an action by private respondent against petitioner for
recovery of possession and ownership and rescission/annulment of
donation.
The facts of the case as summarized by the respondent Court are as
follows:[3]
On June 1, 1981, plaintiff Aurora Directo, defendant Rodolfo Noceda, and
Maria Arbizo, the daughter, grandson, and widow, respectively, of the late
Celestino Arbizo, who died in 1956, extrajudicially settled a parcel of land,
Lot 1121, located at Bitaog, San Isidro, Cabangan, Zambales, which was
said to have an area of 66,530 square meters. Plaintiff Directos share was
11,426 square meters, defendant Noceda got 13,294 square meters, and
the remaining 41,810 square meters went to Maria Arbizo (Exhibit G). On
the same date, plaintiff Directo donated 625 square meters of her share
to defendant Noceda, who is her nephew being the son of her deceased
sister, Carolina (Exhibit D). However, on August 17, 1981, another
extrajudicial settlement-partition of Lot 1121 was executed by plaintiff
Directo, defendant Noceda, and Maria Arbizo. Three fifths of the said land
went to Maria Arbizo while plaintiff Directo and defendant Noceda got only
one-fifth each. In said extrajudicial settlement-partition as well as in the
Tax Declaration 16-0032 over Lot 1121 in the name of the late Celestino
Arbizo, the said parcel of land was said to have an area of only 29,845
P a g e 60 | 111

Occurs (Art 777)
: When Succession
square meters (Exhibit C). Sometime in 1981, defendant Noceda

constructed his house on the land donated to him by plaintiff
Directo. Plaintiff Directo fenced the portion allotted to her in the
extrajudicial settlement, excluding the donated portion, and constructed
thereon three huts. But in 1985, defendant Noceda removed the fence
earlier constructed by plaintiff Directo, occupied the three huts (3) and
fenced the entire land of plaintiff Directo without her consent.Plaintiff
Directo demanded from defendant Noceda to vacate her land, but the
latter refused. Hence, plaintiff Directo filed the present suit, a complaint
for the recovery of possession and ownership and rescission/annulment of
donation, against defendant Noceda before the lower court. During the
trial, the lower court ordered that a relocation survey of Lot 1121 be
conducted by Engr. Edilberto Quejada of the Bureau of Lands. After the
survey of Lot 1121 in the presence of both parties, Engr. Edilberto
Quejada reported that the area of Lot 1121 stated in the extrajudicial
settlement-partition of August 17, 1981 was smaller than the actual area
of Lot 1121 which is 127,298 square meters. Engr. Quejada subdivided Lot
1121, excluding the portions occupied by third persons, known as Lot 8,
the salvage zone and the road lot, on the basis of the actual occupancy of
Lot 1121 by the heirs of the late Celestino Arbizo and the extrajudicial
settlement-partition of August 17, 1981. The portion denominated as Lot
A, with an area of 12,957 square meters was the share of defendant
Noceda; Lot C, with the same area as that of Lot A, was the share of
plaintiff Directo, a portion of which was donated to defendant Noceda; and
Lot B, with an area of 38,872 square meters, went to Maria Arbizo (Exhibit
E).
On November 6, 1991, the Regional Trial Court, Branch 71, of Iba,
Zambales rendered a decision, the dispositive portion of which reads as
follows:[4]
WHEREFORE, in view of the foregoing considerations, the Court hereby
renders judgment:
(a) Declaring the Extra-Judicial Settlement-Partition dated August 19,
1981, valid;
(b) Declaring the Deed of Donation dated June 1, 1981, revoked;
(c) Ordering the defendant to vacate and reconvey that donated portion
of Lot 2, Lot 1121 subject of the Deed of Donation dated June 1, 1981 to
the plaintiff or her heirs or assigns;
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Occurs (Art 777)
: When Succession
(d) Ordering the defendant to remove the house built inside the donated
portion at the defendants expense or pay a monthly rental of P300.00
Philippine Currency;
(e) Ordering the defendant to pay attorneys fees in the amount
of P5,000.00; and
(f) To pay the cost.
Rodolfo Nocedo appealed to the respondent Court which affirmed the
trial court as follows:[5]
WHEREFORE, judgment is hereby rendered, ORDERING defendant Rodolfo
Noceda to VACATE the portion known as Lot C of Lot 1121 per Exhibit E,
which was allotted to plaintiff Aurora Arbizo Directo. Except for this
modification, the Decision, dated November 6, 1991, of the RTC-Iba,
Zambales, Branch 71, in Civil Case No. RTC-354-I, is hereby AFFIRMED in
all other respects. Costs against defendant Rodolfo Noceda.
Dissatisfied, petitioner filed the instant petition for review with the
following assignment of errors:[6]
THE COURT OF APPEALS ERRED IN HOLDING THAT THE SUBJECT
PROPERTY IDENTIFIED AS LOT 1121 CONTAINS AN AREA IN EXCESS OF
THAT STATED IN ITS TAX DECLARATION.
THE COURT OF APPEALS ERRED IN HOLDING THAT LOT 1121 SHOULD BE
PARTITIONED IN ACCORDANCE WITH THE EXTRA-JUDICIAL SETTLEMENT
DATED 17 AUGUST 1981.
THE COURT OF APPEALS ERRED IN ADJUDICATING AND ALLOTING LOT C
AS APPEARING IN THE SURVEY PLAN PREPARED BY GEODETIC ENGINEER
EDILBERTO QUEJADA TO THE RESPONDENT.
THE COURT OF APPEALS ERRED IN FINDING THAT THE PETITIONER
USURPED AN AREA ADJUDICATED TO THE RESPONDENT.
THE COURT OF APPEALS ERRED IN REVOKING THE DEED OF DONATION
DATED 1 JUNE 1981.
The first issue raised refers to the actual area of the subject lot known
as Lot 1121, which was registered under Tax Declaration No. 16-0032
under the name of the late Celestino Arbizo. Petitioner claims that Tax
Declaration No. 16-0032 contains only an area of 29,845 sq. meter; thus
the respondent Court exceeded its judicial authority when it sustained the
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Occurs (Art 777)
: When Succession
lower courts findings that the subject property actually contains an area
of 127,289 square meters.
We find the argument unmeritorious. The records disclose that the
trial court in an Order dated June 8, 1987 gave both parties to this case
the chance to have the subject property re-surveyed by a licensed
surveyor to determine the actual area of Lot 1121. [7] Plaintiff Aurora
Directo filed a motion/compliance where she suggested that Geodetic
Engineer Edilberto V. Quejada of the Bureau of Lands, Iba, Zambales be
commissioned to undertake the survey[8] said motion was also sent to
defendants counsel, Atty. Eufracio Pagunuran for Comment, [9] but Atty.
Pagunuran however failed to file his Comment within the given
period. Thus the trial court designated Engineer Quejada to undertake the
survey of Lot 1121.[10] Petitioner Noceda through counsel belatedly filed
his Comment without any opposition to the appointment of Engineer
Quejada but proposed that the latter be tasked to solely (a) re-survey,
determine and identify the metes and bounds of the lot covered by Tax
Declaration No. 16-0032; (b) to identify the areas occupied by the parties
therein; and (c) to conduct the re-survey with notice and in the presence
of the parties therein and their respective counsels. [11] The Comment was
not, however, acted upon by the trial court in view of its earlier Order
directing Engineer Quejada to undertake the survey of the land. [12] Engr.
Quejada conducted the survey with the conformity and in the presence of
both parties, taking into consideration the extrajudicial partition dated
August 17, 1981, deed of donation dated June 1, 1981 executed by
plaintiff Aurora Directo in favor of defendant Rodolfo Noceda and the
actual area occupied by the parties,[13] as well as the sketch plan [14] and
the technical description of Lot 1121 taken from the Records Section of
the Bureau of Lands, Manila.[15] The report and the survey plan submitted
by Engr. Quejada were approved by the Trial Court in an Order dated
December 7, 1987.[16] These circumstances show that the lower court
ordered the re-survey of the lot to determine the actual area of Lot 1121
and such survey was done with the conformity and in the presence of
both parties. The actual land area based on the survey plan which was
conducted in the presence of both parties, showed a much bigger area
than the area declared in the tax declaration but such differences are not
uncommon as early tax declarations are, more often than not, based on
approximation or estimation rather than on computation. [17] We hold that
the respondent court did not err in sustaining the trial courts findings that
the actual area of Lot 1121 is 127,289 square meters.
Petitioner also contends that said judicial determination improperly
encroaches on the rights and claims of third persons who were never
impleaded below; that the subject lot was also declared in the name of
one Cecilia Obispo and a Free Patent over the said lot was also issued in
her name and that there are several residential houses constructed and
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Occurs (Art 777)
: When Succession
existing on Lot 8 of lot 1121, thus these possessors/occupants of Lot 8

should be joined as defendants for their non-inclusion would be fatal to
respondents cause of action.
We find no merit in this argument. The respondent Court correctly
ratiocinated on this issue as follows:[18]
The fact that Cecilia Obispo has tax declarations in her name over Lot
1121 and several persons occupied a portion thereof did not make them
indispensable parties in the present case. Defendant Noceda merely
presented the tax declarations in the name of Cecilia Obispo without the
alleged free patent in her name. Moreover, no evidence was presented
showing that Cecilia Obispo possessed or claimed possession of Lot
1121. Tax receipts and declarations of ownership for tax purposes are not
conclusive evidence of ownership of property (Republic vs. Intermediate
Appellate Court, 224 SCRA 285).
It was not necessary that the occupants of a portion of Lot 1121,
designated as Lot 8, be impleaded in the present case. Lot 8, though part
of Lot 1121, was excluded by Engr. Quejada in determining the respective
portions of Lot 1121 occupied by plaintiff Directo, defendant Noceda and
Maria Arbizo pursuant to the extrajudicial settlement which they executed
on August 17, 1981. The result of the present suit shall not in any way
affect the occupants of Lot 8, since the issues involved in the present case
are the usurpation by defendant Noceda of the land adjudicated to
plaintiff Directo and the propriety of the cancellation of the deed of
donation in favor of defendant Noceda due to his ingratitude to plaintiff
Directo.
Notably, defendants counsel requested for the appearance of Cecilia
Obispo and despite notice to her to appear in court and bring with her the
alleged free patent in her name,[19] she failed to appear and even failed to
intervene to protect whatever interest and right she has over the subject
lot. As to the other possessors of residential houses in Lot 8 of Lot 1121,
they are not considered as indispensable parties to this case. A party is
not indispensable to the suit if his interest in the controversy or subject
matter is distinct and divisible from the interest of the other parties and
will not necessarily be prejudiced by a judgment which does complete
justice to the parties in court.[20] Private respondent is not claiming the
entire area of Lot 1121 but only a portion thereof which was adjudicated
to her based on the August 17, 1981 extrajudicial settlement and which
was denominated in the survey plan as Lot C of Lot 1121; thus there was
no need to implead the occupants of Lot 8.
Petitioner further claims that the subject property could not be
partitioned based on the extrajudicial settlement-partition dated August
P a g e 64 | 111

Occurs (Art 777)
: When Succession
17, 1981, since the distributive share of the heirs of the late Celestino
Arbizo and the area of Lot 1121 stated therein were different from the
extrajudicial settlement executed on June 1, 1981; that the discrepancies
between the two deeds of partition with respect to the area of Lot 1121
and the respective share of the parties therein indicated that they never
intended that any of the deeds to be the final determination of the
portions of Lot 1121 allotted to them; that the extrajudicial settlementpartition of August 17, 1981 could not effectively subdivide Lot 1121
because it partitioned only 29,845 square meters, and not its actual area
of 127,298 square meters.
We see no cogent reason to disturb the findings of the respondent
Court as follows:[21]
The discrepancies between the extrajudicial settlements executed by
plaintiff Directo, defendant Noceda and Maria Arbizo on June 1, 1981 and
August 17, 1981 only meant that the latter was intended to supersede the
former. The signature of defendant Noceda in the extrajudicial settlement
of August 17, 1981 would show his conformity to the new apportionment
of Lot 1121 among the heirs of the late Celestino Arbizo. The fact that
defendant Noceda occupied the portion allotted to him in the extrajudicial
settlement, as well as the donated portion of the share of plaintiff Directo,
presupposes his knowledge of the extent of boundaries of the portion of
Lot 1121 allotted to him. Moreover, the statement in the extrajudicial
settlement of August 17, 1981 with respect to the area of Lot 1121, which
was 29,845 square meters, is not conclusive because it was found out,
after the relocation survey was conducted on Lot 1121, that the parties
therein occupied an area larger than what they were supposed to possess
per the extrajudicial settlement- partition of August 17, 1981.
Although in the extrajudicial settlement dated August 17, 1981 the
heirs of Celestino Arbizo partitioned only a 29,845 square meter lot to
conform with the area declared under tax declaration 16-0032 yet the
heirs were each actually occupying a bigger portion the total area of
which exceeded 29,845 square meters. This was confirmed by Geodetic
Engineer Quejada in his report submitted to the trial court where he
stated among other things:[22]
7. that upon computation of actual survey, it is informed (sic) that
the area dated (sic) as per extrajudicial settlement-partition in
the name of Celestino Arbizo was smaller than the computed
lots of their actual occupancy as per survey on the ground;
8. The Lot A, Lot B, and Lot C as appearing on prepared plan for
ready reference was subdivided, base (sic) on stated sharing as
per EXTRA JUDICIAL SETTLEMENT-PARTITION base (sic) on actual
occupancy.
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Occurs (Art 777)
: When Succession
The survey conducted on Lot 1121 was only a confirmation of the actual
areas being occupied by the heirs taking into account the percentage
proportion adjudicated to each heir on the basis of their August 17, 1981
extrajudicial settlement.
Petitioner further alleges that the said partition tries to vest in favor of
a third person, Maria Arbizo, a right over the said property
notwithstanding the absence of evidence establishing that she is an heir
of the late Celestino Arbizo since Maria Arbizo was never impleaded as a
party in this case and her interest over Lot 1121 was not established.
Such contention deserves scant consideration. We find no compelling
basis to disturb the finding of the trial court on this factual issue, as
follows:[23]
In effect, the defendant denies the allegation of the plaintiff that Maria
Arbizo was the third wife of Celestino Arbizo and Agripina is her half sister
with a common father. On this point, the Court believes the version of the
plaintiff. The Court observes that in the Extra-Judicial SettlementPartition(Exhibit C), Maria Arbizo is named one of the co-heirs of the
defendant, being the widow of his grandfather, Celestino Arbizo. The
names of Anacleto and Agripina do not also appear in the Extra-judicial
Settlement and Partition because according to the plaintiff, they had sold
their shares to Maria Arbizo. And the defendant is one of the signatories to
the said Deed of Extra-judicial Settlement-Partition acknowledged before
Notary Public Artemio Maranon. Under the circumstances, the Court is
convinced that the defendant knew that Maria Arbizo was the widow of
Celestino Arbizo and he knew of the sale of the share of Anacleto Arbizo
his share, as well as that of Agripina. When the defendant signed the
Extra-Judicial Settlement, he was already an adult since when he testified
in 1989, he gave his age as 50 years old. So that in 1981, he was already
41 years old. If he did not know all of these, the defendant would have not
agreed to the sharing and signed this document and acknowledged it
before the Notary Public. And who could have a better knowledge of the
relationship of Agripina and Maria Arbizo to Celestino Arbizo than the
latters daughter? Besides, at the time of the execution of the ExtraJudicial Settlement-Partition by the plaintiff and defendant, they were still
in good terms. There was no reason for the plaintiff to favor Maria Arbizo
and Agripina Arbizo over the defendant. Furthermore, the defendant had
failed to support his allegation that when his grandfather died he had no
wife and child.
We likewise find unmeritorious petitioners claim that there exist no
factual and legal basis for the adjudication of Lot C of Lot 1121 to private
respondent Aurora Directo. It bears stress that the relocation survey plan
prepared by Geodetic Engineer Quejada was based on the extrajudicial
P a g e 66 | 111

Occurs (Art 777)
: When Succession
settlement dated August 17, 1981, and the actual possession by the
parties and the technical description of Lot 1121. It was established by
the survey plan that based on the actual possession of the parties, and
the extrajudicial settlement among the heirs the portion denominated as
Lot C of Lot 1121 of the survey plan was being occupied by private
respondent Aurora Directo and it was also shown that it is in Lot C where
the 625 square meter area donated by private respondent Directo to
petitioner is located. There is no obstacle to adjudicate Lot C to private
respondent as her rightful share allotted to her in the extrajudicial
settlement.
Petitioner argues that he did not usurp the property of respondent
Directo since, to date, the metes and bounds of the parcel of land left by
their predecessor in interest, Celestino Arbizo, are still undetermined since
no final determination as to the exact areas properly pertaining to the
parties herein; hence they are still considered as co-owners thereof.
We do not agree.
In this case the source of co-ownership among the heirs was intestate
succession. Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs subject
to the payment of debts of the deceased. [24] Partition, in general, is the
separation, division and assignment of a thing held in common among
those to whom it may belong. [25] The purpose of partition is to put an end
to co-ownership. It seeks a severance of the individual interest of each coowner, vesting in each a sole estate in specific property and giving to
each one a right to enjoy his estate without supervision or interference
from the other.[26] And one way of effecting a partition of the decedents
estate is by the heirs themselves extrajudicially. The heirs of the late
Celestino Arbizo namely Maria Arbizo, Aurora A. Directo (private
respondent) and Rodolfo Noceda (petitioner) entered into an extrajudicial
settlement of the estate on August 17, 1981 and agreed to adjudicate
among themselves the property left by their predecessor-in-interest in the
following manner:
To Rodolfo Noceda goes the northern one-fifth (1/5) portion containing an
area of 5,989 sq. meters;
To Maria Arbizo goes the middle three-fifths (3/5) portion;
and To Aurora Arbizo goes the southern one-fifth (1/5) portion.[27]
In the survey plan submitted by Engineer Quejada, the portions indicated
by red lines and numbered alphabetically were based on the percentage
proportion in the extrajudicial settlement and the actual occupancy of
each heir which resulted to these divisions as follows:[28]
P a g e 67 | 111

Occurs (Art 777)
: When Succession
Lot A; the area is 2,957 sq.m.- goes to Rodolfo A. Noceda (1/5)

Lot B; 38,872 sq.m Maria Arbizo (3/5)
Lot C 12,957 sq.m. Aurora Arbizo (1/5)
Thus, the areas allotted to each heir are now specifically delineated in the
survey plan. There is no co-ownership where portion owned is concretely
determined and identifiable, though not technically described, or that said
portions are still embraced in one and the same certificate of title does
not make said portions less determinable or identifiable, or
distinguishable, one from the other, nor that dominion over each portion
less exclusive, in their respective owners.[29] A partition legally made
confers upon each heir the exclusive ownership of the property
adjudicated to him.[30]
We also find unmeritorious petitioners argument that since there was
no effective and real partition of the subject lot there exists no basis for
the charge of usurpation and hence there is also no basis for finding
ingratitude against him. It was established that petitioner Noceda
occupied not only the portion donated to him by private respondent
Aurora Arbizo-Directo but he also fenced the whole area of Lot C which
belongs to private respondent Directo, thus petitioners act of occupying
the portion pertaining to private respondent Directo without the latters
knowledge and consent is an act of usurpation which is an offense against
the property of the donor and considered as an act of ingratitude of a
donee against the donor. [31] The law does not require conviction of the
donee; it is enough that the offense be proved in the action for
revocation.[32]
Finally, petitioner contends that granting revocation is proper, the
right to enforce the same had already prescribed since as admitted by
private respondent, petitioner usurped her property in the first week of
September 1985 while the complaint for revocation was filed on
September 16, 1986, thus more than one (1) year had passed from the
alleged usurpation by petitioner of private respondents share in Lot
1121. We are not persuaded. The respondent Court rejected such
argument in this wise:
Article 769 of the New Civil Code states that: The action granted to the
donor by reason of ingratitude cannot be renounced in advance. This
action prescribes within one year to be counted from the time the donor
had knowledge of the fact and it was possible for him to bring the action.
As expressly stated, the donor must file the action to revoke his donation
within one year from the time he had knowledge of the ingratitude of the
donee. Also, it must be shown that it was possible for the donor to
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Occurs (Art 777)
: When Succession
institute the said action within the same period. The concurrence of these
two requisites must be shown by defendant Noceda in order to bar the
present action. Defendant Noceda failed to do so. He reckoned the one
year prescriptive period from the occurrence of the usurpation of the
property of plaintiff Directo in the first week of September, 1985, and not
from the time the latter had the knowledge of the usurpation. Moreover,
defendant Noceda failed to prove that at the time plaintiff Directo
acquired knowledge of his usurpation, it was possible for plaintiff Directo
to institute an action for revocation of her donation.
The action to revoke by reason of ingratitude prescribes within one (1)
year to be counted from the time (a) the donor had knowledge of the fact;
(b) provided that it was possible for him to bring the action. It is
incumbent upon petitioner to show proof of the concurrence of these two
conditions in order that the one (1) year period for bringing the action be
considered to have already prescribed. No competent proof was adduced
by petitioner to prove his allegation. In Civil Cases, the party having the
burden of proof must establish his case by preponderance of evidence.
[33]
He who alleges a fact has the burden of proving it and a mere
allegation is not evidence.[34]
Factual findings of the Court of Appeals, supported by substantial
evidence on record are final and conclusive on the parties and carry even
more weight when the Court of Appeals affirms the factual findings of the
trial court;[35] for it is not the function of this Court to re-examine all over
again the oral and documentary evidence submitted by the parties unless
the findings of fact of the Court of Appeals are not supported by the
evidence on record or the judgment is based on the misapprehension of
facts.[36] The jurisdiction of this court is thus limited to reviewing errors of
law unless there is a showing that the findings complained of are totally
devoid of support in the record or that they are so glaringly erroneous as
to constitute serious abuse of discretion.[37] We find no such showing in
this case.
We find that both the trial court and the respondent Court had
carefully considered the questions of fact raised below and the
respondent Courts conclusions are based on the evidence on record. No
cogent reason exists for disturbing such findings.[38] We also note that
petitioner in this petition merely rehashed the same issues and arguments
raised in the respondent Court in whose decision we find no reversible
error. Clearly, petitioner failed to present any substantial argument to
justify a reversal of the assailed decision.
WHEREFORE, the petition for review is hereby DENIED. Costs against
appellant.
SO ORDERED.
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Occurs (Art 777)
: When Succession
Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.
NELSON
NUFABLE,
SILMOR
NUFABLE
and
AQUILINA
NUFABLE petitioners, vs.
GENEROSA
NUFABLE,
VILFOR
NUFABLE, MARCELO NUFABLE, and the COURT OF
APPEALS, respondents.
DECISION
GONZAGA-REYES, J.:
This petition for review on certiorari seeks to reverse and set aside the
Decision dated November 25, 1995 of the Fifth Division [1] of the Court of
Appeals for allegedly being contrary to law.
The following facts as found by the Court of Appeals are undisputed:
P a g e 70 | 111

Occurs (Art 777)
: When Succession
Edras Nufable owned an untitled parcel of land located at Poblacion,

Manjuyod, Negros Oriental, consisting of 948 square meters, more or
less. He died on August 9, 1965 and was survived by his children, namely:
Angel Custodio, Generosa, Vilfor and Marcelo, all surnamed Nufable. Upon
petition for probate filed by said heirs and after due publication and
hearing, the then Court of First Instance of Negros Oriental (Branch II)
issued an Order dated March 30, 1966 admitting to probate the last will
and testament executed by the deceased Edras Nufable (Exhs. B, C and
C-1).
On June 6, 1966, the same court issued an Order approving the
Settlement of Estate submitted by the heirs of the late Esdras Nufable,
portions of which read:
KNOW ALL MEN BY THESE PRESENTS:
We, ANGEL CUSTODIO NUFABLE, GENEROSA NUFABLE, VILFOR NUFABLE,
and MARCELO NUFABLE, all of legal ages (sic), Filipinos, and with
residence and postal address at Manjuyod, Negros Oriental, Philippines,
- HEREBY DECLARE AND MAKE MANIFEST 1. That on August 9, 1965, Rev. Fr. Esdras Nufable died leaving (a) Last
Will and Testament (marked Exh. G) disposing (of) his properties or estate
in favor of his four legitimate children, namely: Angel Custodio Nufable,
Generosa Nufable, Vilfor Nufable and Marcelo Nufable;
2. That on March 30, 1966, the said Last Will and Testament was probated
by the Honorable Court, Court of First Instance of Negros Oriental, and is
embodied in the same order appointing an Administratrix, Generosa
Nufable, but to qualify only if she put up a necessary bond of P1,000.00;
3. That herein legitimate children prefer not to appoint an Administratrix,
as agreed upon (by) all the heirs, because they have no objection as to
the manner of disposition of their share made by the testator, the
expenses of the proceedings and that they have already taken possession
of their respective shares in accordance with the will;
4. That the herein heirs agreed, as they hereby agree to settle the estate
in accordance with the terms and condition of the will in the following
manner, to wit:
a) That the parcel of land situated in Poblacion Manjuyod, Negros Oriental
remains undivided for community ownership but respecting conditions
imposed therein (sic) in the will;
P a g e 71 | 111

Occurs (Art 777)
: When Succession
xxx xxx xxx.

(Exhs. E and E-1)
Two months earlier, or on March 15, 1966, spouses Angel Custodio and
Aquilina Nufable mortgaged the entire property located at Manjuyod to
the Development Bank of the Philippines [DBP] (Pre-trial Order, dated
January 7, 1992, p. 103, Original Records). Said mortgagors became
delinquent for which reason the mortgaged property was foreclosed by
DBP on February 26, 1973 (id.).
On January 11, 1980, Nelson Nufable, the son of Angel Custodio Nufable
(who died on August 29, 1978 [TSN, Testimony of Nelson Nufable, Hearing
of August 18, 1992, p. 17]), purchased said property from DBP (Exh. 1).
Generosa, Vilfor and Marcelo, all surnamed Nufable filed with the lower
court a complaint dated July 25, 1985 To Annul Fraudulent Transactions, to
Quiet Title and To Recover Damages against Nelson Nufable, and wife,
Silnor Nufable and his mother Aquilina Nufable. Plaintiffs pray:
WHEREFORE, plaintiffs pray this Honorable Court that after trial judgment
be rendered ordering:
(a) That the said Deed of Sale (Annex C) executed by the Development
Bank of the Philippines in favor of the defendants be declared null and
void as far as the three fourths () rights which belongs (sic) to the
plaintiffs are concerned;
'(b) That the said three fourths () rights over the above parcel in question
be declared as belonging to the plaintiffs at one fourth right to each of
them;
(c) To order the defendants to pay jointly and severally to the plaintiffs by
way of actual and moral damages the amount of P10,000.00 and
another P5,000.00 as Attorneys fees, and to pay the costs.
(d) Plus any other amount which this Court may deem just and
equitable. (p. 6, Original Records)
In their Answer, defendants contend:
4. Paragraph 4 is denied, the truth being that the late Angel Nufable was
the exclusive owner of said property, that as such owner he mortgaged
the same to the Development Bank of the Philippines on March 15, 1966,
that said mortgage was foreclosed and the DBP became the successful
P a g e 72 | 111

Occurs (Art 777)
: When Succession
bidder at the auction sale, that ownership was consolidated in the name
of the DBP, and that defendant Nelson Nufable bought said property from
the DBP thereafter. During this period, the plaintiffs never questioned the
transactions which were public, never filed any third party claim nor
attempted to redeem said property as redemptioners, and that said Deed
of Sale, Annex B to the complaint, is fictitious, not being supported by any
consideration; (pp. 20-21, id.)
The Deed of Sale (Annex B), referred to by the parties is a notarized Deed
of Sale, dated July 12, 1966 (marked as Exhibit H) by virtue of which,
spouses Angel and Aquilina Nufable, as vendors, sold portion of the
subject property to herein plaintiffs for and in consideration of P1,000.00
(Exh. 5).[2]
On November 29, 1995, the Court of Appeals rendered judgment, the
dispositive portion[3] of which reads:
WHEREFORE, the appealed decision of the lower court is REVERSED and
SET ASIDE. A new judgment is hereby entered declaring plaintiffsappellants as the rightful co-owners of the subject property and entitled
to possession of southern portion thereof; and defendant-appellee Nelson
Nufable to portion.
No award on damages.
No costs.
Defendants-appellees Motion for Reconsideration was denied for lack
of merit in the Resolution of the Court of Appeals[4] dated October 2, 1996.
Hence, the present petition. Petitioners raise the following grounds for
the petition:
1. The Honorable Court of Appeals erred in considering as controlling the
probate of the Last Will and Testament of Esdras Nufable, the probate
thereof not being an issue in this case;
2. The Honorable Court of Appeals erred in not considering the fact that
the Development Bank of the Philippines became the absolute, exclusive,
legal, and rightful owner of the land in question, from whom petitioner
Nelson Nufable acquired the same by purchase and that, therefore, no
award can be made in favor of private respondents unless and until the
Development Bank of the Philippines title thereto is first declared null and
void by the court.
P a g e 73 | 111

Occurs (Art 777)
: When Succession
The Court of Appeals, in its decision, stated that the trial court failed
to take into consideration the probated will of the late Esdras Nufable
bequeathing the subject property to all his four children. [5] In the present
petition, petitioners present the issue of whether or not the Last Will and
Testament of Esdras Nufable and its subsequent probate are pertinent and
material to the question of the right of ownership of petitioner Nelson
Nufable who purchased the land in question from, and as acquired
property of, the Development Bank of the Philippines (DBP, for
short). They contend that the probate of the Last Will and Testament of
Esdras Nufable did not determine the ownership of the land in question as
against third parties.
As a general rule, courts in probate proceedings are limited only to
passing upon the extrinsic validity of the will sought to be probated, the
due execution thereof, the testators testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. Said
court at this stage of the proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provision of the will. [6] The question of
the intrinsic validity of a will normally comes only after the court has
declared that the will has been duly authenticated.
The records show that upon petition for probate filed by the heirs of
the late Esdras Nufable, an Order dated March 30, 1966 was issued by
then Court of First Instance of Negros Oriental, Branch II, admitting to
probate the last will and testament executed by the decedent.
[7]
Thereafter, on June 6, 1966, the same court approved the Settlement of
Estate submitted by the heirs of the late Esdras Nufable wherein they
agreed (T)hat the parcel land situated in Poblacion Manjuyod, Negros
Oriental remains undivided for community ownership but respecting
conditions imposed therein (sic) in the will. [8] In paragraph 3 thereof, they
stated that they have no objection as to the manner of disposition of their
share made by the testator, the expenses of the proceeding and that they
have already taken possession of their respective shares in accordance
with the will. Verily, it was the heirs of the late Esdras Nufable who agreed
among themselves on the disposition of their shares. The probate court
simply approved the agreement among the heirs which approval was
necessary for the validity of any disposition of the decedents estate.[9]
It should likewise be noted that the late Esdras Nufable died on August
9, 1965. When the entire property located at Manjuyod was mortgaged on
March 15, 1966 by his son Angel Custodio with DBP, the other heirs of
Esdras - namely: Generosa, Vilfor and Marcelo - had already acquired
successional rights over the said property. This is so because of the
principle contained in Article 777 of the Civil Code to the effect that the
rights to the succession are transmitted from the moment of death of the
decedent. Accordingly, for the purpose of transmission of rights, it does
not matter whether the Last Will and Testament of the late Esdras Nufable
P a g e 74 | 111

Occurs (Art 777)
: When Succession
was admitted on March 30, 1966 or thereafter or that the Settlement of

Estate was approved on June 6, 1966 or months later. It is to be noted
that the probated will of the late Esdras Nufable specifically referred to
the subject property in stating that the land situated in the Poblacion,
Manjuyod, Negros Oriental, should not be divided because this must
remain in common for them, but it is necessary to allow anyone of them
brothers and sisters to construct a house therein. [10] It was therefor the
will of the decedent that the subject property should remain undivided,
although the restriction should not exceed twenty (20) years pursuant to
Article 870[11] of the Civil Code.
Thus, when Angel Nufable and his spouse mortgaged the subject
property to DBP on March 15, 1966, they had no right to mortgage the
entire property. Angels right over the subject property was limited only
to pro indiviso share. As co-owner of the subject property, Angels right to
sell, assign or mortgage is limited to that portion that may be allotted to
him upon termination of the co-ownership. Well-entrenched is the rule
that a co-owner can only alienate his pro indiviso share in the co-owned
property.[12]
The Court of Appeals did not err in ruling that Angel Custodio Nufable
had no right to mortgage the subject property in its entirety. His right to
encumber said property was limited only to pro indivisoshare of the
property in question.[13] Article 493 of the Civil Code spells out the rights
of co-owners over a co-owned property. Pursuant to said Article, a coowner shall have full ownership of his part and of the fruits and benefits
pertaining thereto. He has the right to alienate, assign or mortgage it, and
even substitute another person in its enjoyment. As a mere part owner,
he cannot alienate the shares of the other co-owners. The prohibition is
premised on the elementary rule that no one can give what he does not
have.[14]
Moreover, respondents stipulated that they were not aware of the
mortgage by petitioners of the subject property. [15] This being the case, a
co-owner does not lose his part ownership of a co-owned property when
his share is mortgaged by another co-owner without the formers
knowledge and consent[16] as in the case at bar. It has likewise been ruled
that the mortgage of the inherited property is not binding against co-heirs
who never benefitted.[17]
Furthermore, the Deed of Sale dated June 17, 1966 marked as Exhibit
H executed by spouses Angel and Aquilina Nufable in favor of respondents
Generosa, Vilfor and Marcelo wherein the former sold, ceded and
transferred back to the latter the portion of the subject property bolsters
respondents claim that there was co-ownership. Petitioner Nelson himself
claimed that he was aware of the aforesaid Deed of Sale.[18]
P a g e 75 | 111

Occurs (Art 777)
: When Succession
Anent the second ground of the petition, petitioners allege that the
Development Bank of the Philippines acquired ownership of the land in
question
through
foreclosure,
purchase
and
consolidation
of
ownership. Petitioners argue that if petitioner Nelson Nufable had not
bought said land from the DBP, private respondents, in order to acquire
said property, must sue said bank for the recovery thereof, and in so
doing, must allege grounds for the annulment of documents evidencing
the banks ownership thereof. Petitioners contend that since petitioner
Nelson Nufable simply bought the whole land from the bank, they cannot
be deprived of the ownership of without making any pronouncement as to
the legality or illegality of the banks ownership of said land. It is argued
that there was no evidence to warrant declaration of nullity of the banks
acquisition of said land; and that neither was there a finding by the court
that the bank illegally acquired the said property.
As adverted to above, when the subject property was mortgaged by
Angel Custodio, he had no right to mortgage the entire property but only
with respect to his pro indiviso share as the property was subject to the
successional rights of the other heirs of the late Esdras. Moreover, in case
of foreclosure, a sale would result in the transmission of title to the buyer
which is feasible only if the seller can be in a position to convey ownership
of the things sold.[19] And in one case,[20] it was held that a foreclosure
would be ineffective unless the mortgagor has title to the property to be
foreclosed. Therefore, as regards the remaining pro indiviso share, the
same was held in trust for the party rightfully entitled thereto, [21] who are
the private respondents herein.
Pursuant to Article 1451 of the Civil Code, when land passes by
succession to any person and he causes the legal title to be put in the
name of another, a trust is established by implication of law for the
benefit of the true owner. Likewise, under Article 1456 of the same Code,
if property is acquired through mistake or fraud, the person obtaining it is,
by force of law, considered a trustee of an implied trust for the benefit of
the person from whom the property comes. In the case of Noel vs. Court
of Appeals,[22] this Court held that a buyer of a parcel of land at a public
auction to satisfy a judgment against a widow acquired only one-half
interest on the land corresponding to the share of the widow and the
other half belonging to the heirs of her husband became impressed with a
constructive trust in behalf of said heirs.
Neither does the fact that DBP succeeded in consolidating ownership
over the subject property in its name terminate the existing coownership. Registration of property is not a means of acquiring ownership.
[23]
When the subject property was sold to and consolidated in the name of
DBP, it being the winning bidder in the public auction, DBP merely held
the portion in trust for the private respondents.When petitioner Nelson
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Occurs (Art 777)
: When Succession
purchased the said property, he merely stepped into the shoes of DBP and
acquired whatever rights and obligations appertain thereto.
This brings us to the issue of whether or not the DBP should have been
impleaded as party-defendant in the case at bar. Petitioners contend that
DBP was never impleaded and that due process requires that DBP be
impleaded so that it can defend its sale to petitioner Nelson Nufable; and
that it was the duty of private respondents, and not of petitioner Nelson,
to implead the bank and ask for the annulment of documents evidencing
the banks ownership of the disputed land.
In the Rejoinder to the Reply, private respondents that the noninclusion of DBP as a necessary party was not questioned by petitioners
from the time the Complaint was filed until the case was finished. It was
only after the adverse decision by the respondent Court of Appeals that
petitioners raised the issue.
At the outset, it should be stated that petitioners never raised this
issue in their Answer and pursuant to Section 2, Rule 9 of the Rules of
Court, defenses and objections not pleaded either in a motion to dismiss
or in the answer are deemed waived.
Nonetheless, the rule is that indispensable parties, i.e., parties in
interest without whom no final determination can be had of an action,
shall be joined either as plaintiffs or defendants; the inclusion as a party
being compulsory.[24] On the other hand, in case of proper or necessary
parties, i.e., persons who are not indispensable but ought to be parties if
complete relief is to be accorded as between those already parties, the
court may, in its discretion, proceed in the action without making such
persons parties, and the judgment rendered therein shall be without
prejudice to the rights of such persons. [25] Proper parties, therefore, have
been described as parties whose presence is necessary in order to
adjudicate the whole controversy, but whose interests are so far
separable that a final decree can be made in their absence without
affecting them.[26] Any claim against a party may be severed and
proceeded with separately.[27]
The pivotal issue to be determined is whether DBP is an indispensable
party in this case.
Private respondents do not question the legality of the foreclosure of
the mortgaged property and the subsequent sale of the same to DBP. The
subject property was already purchased by petitioner Nelson from DBP
and the latter, by such sale, transferred its rights and obligations to the
former. Clearly, petitioners interest in the controversy is distinct and
separable from the interest of DBP and a final determination can be had
of the action despite the non-inclusion of DBP as party-defendant. Hence,
P a g e 77 | 111

Occurs (Art 777)
: When Succession
DBP, not being an indispensable party, did not have to be impleaded in

this case.
WHEREFORE, there being no reversible error in the decision appealed
from, the petition for review on certiorari is hereby DENIED.
SO ORDERED.
Vitug, Panganiban, and Purisima, JJ., concur.
Romero, J., (Chairman), on official business leave abroad.
G.R. No. L-14070
March 29, 1961
MARIA GERVACIO BLAS, MANUEL GERVACIO BLAS, LEONCIO

GERVACIO BLAS and LODA GERVACIO BLAS, plaintiffs-appellants,
vs.
ROSALINA SANTOS, in her capacity as Special Administratrix of
the Estate of the deceased MAXIMA SANTOS VDA. DE BLAS, in Sp.
Proc. No. 2524, Court of First Instance of Rizal, defendantsCompiled by: aeejercito-beck
P a g e 78 | 111

Occurs (Art 777)
: When Succession
appellants. MARTA GERVACIO BLAS and DR. JOSE

CHIVI, defendants-appellants.
Teofilo Sison and Nicanor Sison for plaintiffs-appellants.
De los Santos, Caluag, Pascal and Felizardo for defendants-appellees.
LABRADOR, J.:
This action was instituted by plaintiffs against the administration of the
estate of Maxima Santos, to secure a judicial declaration that one-half of
the properties left by Maxima Santos Vda. de Blas, the greater bulk of
which are set forth and described in the project of partition presented in
the proceedings for the administration of the estate of the deceased
Simeon Blas, had been promised by the deceased Maxima Santos to be
delivered upon her death and in her will to the plaintiffs, and requesting
that the said properties so promised be adjudicated to the plaintiffs. The
complaint also prays for actual damages in the amount of P50,000.
(Record on Appeal, pp. 1-65.) The alleged promise of the deceased
Maxima Santos is contained in a document executed by Maxima Santos
on December 26, 1936 attached to the complaint as Annex "H" and
introduced at the trial as Exhibit "A". (Ibid., pp. 258-259.) The complaint
also alleges that the plaintiffs are entitled to inherit certain properties
enumerated in paragraph 3 thereof, situated in Malabon, Rizal and
Obando, Bulacan, but which properties have already been in included in
the inventory of the estate of the deceased Simeon Blas and evidently
partitioned and conveyed to his heirs in the proceedings for the
administration of his (Simeon Blas) estate.
Defendant, who is the administratrix of the estate of the deceased
Maxima Santos Vda. de Blas, filed an answer with a counterclaim, and
later, an amended answer and a counterclaim. The said amended answer
admits the allegations of the complaint as to her capacity as
administratrix the death of Simeon Blas on January 3, 1937; the fact that
Simeon Blas and Marta Cruz begot three children only one of whom,
namely, Eulalio Blas, left legitimate descendants; that Simeon Blas
contracted a second marriage with Maxima Santos on June 28, 1898. She
denies for lack of sufficient information and belief, knowledge edge of the
first marriage of Simeon Blas to Marta Cruz, the averment that Simeon
Blas and Marta Cruz acquired properties situated in Obando, Bulacan, that
said properties were utilized as capital, etc. As special defenses, she
alleges that the properties of the spouses Blas and Santos had been
settled and liquidated in the project of partition of the estate of said
Simeon Blas; that pursuant to the project of partition, plaintiffs and some
defendants had already received the respective properties adjudicated to
them; that the plaintiffs and the defendants Marta Geracio and Jose Chivi
P a g e 79 | 111

Occurs (Art 777)
: When Succession
are estopped from impugning the validity of the project of partition of the
estate of the deceased Simeon Blas and from questioning the ownership
in the properties conveyed in the project of partition to Maxima Santos as
her own exclusive property; that the testament executed by Maxima
Santos is valid, the plain plaintiffs having no right to recover any portion
of Maxima Santos' estate now under administration by the court. A
counterclaim for the amount of P50,000 as damages is also included in
the complaint, as also a cross-claim against Marta Gervacio Blas and Jose
Chivi.
Trial of the case was Conducted and, thereafter, the court, Hon. Gustave
Victoriano, presiding, rendered judgment dismissing the complaint, with
costs against plaintiff, and dismissing also the counterclaim and crossclaim decision ,the plaintiffs filed by the defendants. From this district
have appealed to this Court.
The facts essential to an understanding of the issues involved in the case
may be briefly summarized as follows: Simeon Blas contracted a first
marriage with Marta Cruz sometime before 1898. They had three children,
only one of whom, Eulalio, left children, namely, Maria Gervacio Blas, one
of the plaintiffs, Marta Gervacio Blas, one of the defendants, and Lazaro
Gervacio Blas. Lazaro died in 1950, and is survived by three legitimate
children who are plaintiffs herein, namely, Manuel Gervacio Blas, Leoncio
Gervacio Blas and Loida Gervacio Blas. Marta Cruz died in 1898, and the
following year, Simeon Blas contracted a second marriage with Maxima
Santos. At the time of this second marriage, no liquidation of the
properties required by Simeon Blas and Marta Cruz was made. Three of
the properties left are fishponds located in Obando, Bulacan. Maxima
Santos does not appear to have apported properties to her marriage with
Simeon Blas.
On December 26, 1936, only over a week before over a week before his
death on January 9, 1937, Simeon Blas executed a last will and testament.
In the said testament Simeon Blas makes the following declarations:
I
2. Sa panahon ng aking pangalawang asawa, MAXIMA SANTOS DE
BLAS, ay nagkaroon ako at nakatipon ng mga kayamanan (bienes)
at pag-aari (propriedades) na ang lahat ng lupa, palaisdaan at iba
pang pag-aari ay umaabot sa halagang ANIM NA RAAN PITONG PU'T
WALONG DAAN LIBO WALONG DAAN WALONG PUNG PISO (678,88000) sang-ayon sa mga halaga sa amillarimento (valor Amillarado.)
II
P a g e 80 | 111

Occurs (Art 777)
: When Succession
1. Ang kalahati ng lahat ng aming pag-aari, matapos mabayaran

ang lahat ng aking o aming pag-kakautang na mag-asawa, kung
mayroon man, yayamang ang lahat ng ito ay kita sa loob ng
matrimonio (bienes ganaciales) ay bahagi ng para sa aking asawa,
MAXIMA SANTOS DE BLAS, sang-ayon sa batas. (Record on Appeal,
pp. 250-251.)
The above testamentary provisions may be translated as follows:
I
2. During my second marriage with Maxima Santos de Blas, I
possessed and acquired wealth and properties, consisting of lands,
fishponds and other kinds of properties, the total assessed value of
which reached the amount P678,880.00.
II
1. One-half of our properties, after the payment of my and our
indebtedness, all these properties having been acquired during
marriage (conjugal properties), constitutes the share of my wife
Maxima Santos de Blas, according to the law.
At the time of the execution of said will, Andres Pascual a son-in-law of the
testator, and Avelina Pascual and others, were present. Andres Pascual
had married a descendant by the first marriage. The will was prepared by
Andres Pascual, with the help of his nephew Avelino Pascual. The testator
asked Andres Pascual to prepare a document which was presented in
court as Exhibit "A", thus:
Q Was there anybody who asked you to prepare this document?
A Don Simeon Blas asked me to prepare this document (referring
to Exhibit "A"), (t.s.n., Sarmiento to, P. 24).
The reason why the testator ordered the preparation of Exhibit "A" was
because the properties that the testator had acquired during his first
marriage with Marta Cruz had not been liquidated and were not separated
from those acquired during the second marriage. Pascual's testimony is as
follows:
Q To whom do you refer with the word "they"?
A Simeon Blas and his first wife, Marta Cruz. When Marta Cruz
died they had not made a liquidation of their conjugal properties
P a g e 81 | 111

Occurs (Art 777)
: When Succession
and so all those properties were included all in the assets of the
second marriage, and that is the reason why this document was
prepared. (t.s.n., Sarmiento, p. 36.)
The above testimony is fully corroborated by that of Leoncio Gervacio,
son-in-law of Simeon Blas.
Q Please state to the Court?
A My children were claiming from their grandfather Simeon Blas
the properties left by their grandmother Marta Cruz in the year
1936.
Q And what happened with that claim of your children against
Simeon Blas regarding the assets or properties of the first marriage
that were left after the death of Marta Cruz in 1936?
A The claim was not pushed through because they reached into
an agreement whereby the parties Simeon Blas Maxima Santos,
Maria Gervacio Bias, Marta Gervacio Blas and Lazaro Gervacio Blas
agreed that Simeon Blas and Maxima Blas will give one-half of the
estate of Simeon Blas. (t.s.n., Sarmiento, pp. 143-144).
The document which was thus prepared and which is marked as Exhibit
"A" reads in Tagalog, thus:
MAUNAWA NG SINO MANG MAKABABASA:
Na akong si MAXIMA SANTOS DE BLAS, nasa hustong gulang, kasal
kay SIMEON BLAS, taga bayan ng Malabon, Rizal, Philippines, sa
pamamagitan ng kasulatang ito ay malaya kong ipinahahayag:
Na aking nabasa at naunawa ang testamento at huling kalooban na
nilagdaan ng aking asawa, SIMEON BLAS, at ipinahahayag ko sa
ilalim ng aking karangalan at sa harap ng aking asawa na igagalang
at pagpipitaganan ang lahat at bawa't isang bahagi ng nabanggit na
testamento at ipinangangako ko pa sa pamamagitan ng kasulatang
ito na ang lahat ng maiiwang pag-aari at kayamanan naming magasawa, na nauukol at bahaging para sa akin sa paggawa ko naman
ng aking testamento ay ipagkakaloob ko ang kalahati () sa mga
herederos at legatarios o pinamamanahan ng aking nabanggit na
asawa, SIMEON BLAS, sa kaniyang testamento, na ako'y makapipili
o makahihirang na kahit kangino sa kanila ng aking pagbibigyan at
pamamanahan sang-ayon sa paggalang, paglilingkod, at pakikisama
ng gagawin sa akin.
P a g e 82 | 111

Occurs (Art 777)
: When Succession
SA KATUNAYAN NG LAHAT NG ITO ay nilagdaan ko ang kasulatang

ito ngayon ika 26 ng Diciembre ng taong 1936, dito sa San
Francisco del Monte, San Juan, Rizal, Philippines. (Exh. "A", pp. 2930 Appellant's brief).
(Fdo.) MAXIMA SANTOS DE

BLAS
and which, translated into English, reads as follows:

KNOW ALL MEN BY THESE PRESENTS:
That I MAXIMA SANTOS DE BLAS, of legal age, married to SIMEON
BLAS, resident of Malabon, Rizal, Philippines, voluntarily state:
That I have read and knew the contents of the will signed by my
husband, SIMEON BLAS, (2) and I promise on my word of honor in
the presence of my husband that I will respect and obey all and
every disposition of said will (3) and furthermore, I promise in this
document that all the properties my husband and I will leave, the
portion and share corresponding to me when I make my will, I will
give one-half () to the heirs and legatees or the beneficiaries
named in the will of my husband, (4) and that I can select or choose
any of them, to whom I will give depending upon the respect,
service and treatment accorded to me.
IN WITNESS WHEREOF, I signed this document this 26th day of
December, 1936 at San Francisco del Monte, San Juan, Rizal,
Philippines. (Exh. "A", pp. 30-31, Appellant's brief).
(Sgd.) MAXIMA SANTOS DE

BLAS
The court below held that said Exhibit "A" has not created any right in
favor of plaintiffs which can serve as basis for the complaint; that neither
can it be considered as a valid and enforceable contract for lack of
consideration and because it deals with future inheritance. The court also
declared that Exhibit "A" is not a will because it does not comply with the
requisites for the execution of a will; nor could it be considered as a
donation, etc.
P a g e 83 | 111

Occurs (Art 777)
: When Succession
Both the court below in its decision and the appellees in their brief before
us, argue vehemently that the heirs of Simeon Blas and his wife Marta
Cruz can no longer make any claim for the unliquidated conjugal
properties acquired during said first marriage, because the same were
already included in the mass of properties constituting the estate of the
deceased Simeon Blas and in the adjudications made by virtue of his will,
and that the action to recover the same has prescribed. This contention is
correct. The descendants of Marta Cruz can no longer claim the conjugal
properties that she and her husband may have required during their
marriage although no liquidation of such properties and delivery thereof
to the heirs of Marta Cruz have been made, no action to recover said
propertied having been presented in the proceedings for the settlement of
the estate of Simeon Blas.
But the principal basis for the plaintiffs' action in the case at bar is the
document Exhibit "A". It is not disputed that this document was prepared
at the instance of Simeon Blas for the reason that the conjugal properties
of me on Blas for the reason his first marriage had not been liquidated;
that it was prepared at the same time as the will of Simeon Blas on
December 26, 1936, at the instance of the latter himself. It is also not
disputed that the document was signed by Maxima Santos and one copy
thereof, which was presented in court as Exhibit "A", was kept by
plaintiffs' witness Andres Pascual.
Plaintiffs-appellants argue before us that Exhibit "A" is both a trust
agreement and a contract in the nature of a compromise to avoid
litigation. Defendants-appellees, in answer, claim that it is neither a trust
agreement nor a compromise a agreement. Considering that the
properties of the first marriage of Simeon Blas had not been liquidated
when Simeon Blas executed his will on December 26, 1936', and the
further fact such properties where actually , and the further fact that
included as conjugal properties acquired during the second marriage, we
find, as contended by plaintiffs-appellants that the preparation and
execution of Exhibit "A" was ordered by Simeon Blas evidently to prevent
his heirs by his first marriage from contesting his will and demanding
liquidation of the conjugal properties acquired during the first marriage,
and an accounting of the fruits and proceeds thereof from the time of the
death of his first wife.
Exhibit "A", therefore, appears to be the compromise defined in Article
1809 of the Civil Code of Spain, in force at the time of the execution of
Exhibit "A", which provides as follows:
Compromise is a contract by which each of the parties in interest,
by giving, promising, or retaining something avoids the provocation
P a g e 84 | 111

Occurs (Art 777)
: When Succession
of a suitor terminates one which has already the provocation been

instituted. (Emphasis supplied.)
Exhibit "A" states that the maker (Maxima Santos) had read and knew the
contents of the will of her husband read and knew the contents of the will
Simeon Blas she was evidently referring to the declaration in the will(of
Simeon Blas) that his properties are conjugal properties and one-half
thereof belongs to her (Maxima Santos) as her share of the conjugal
assets under the law. The agreement or promise that Maxima Santos
makes in Exhibit "A" is to hold one-half of her said share in the conjugal
assets in trust for the heirs and legatees of her husband in his will, with
the obligation of conveying the same to such of his heirs or legatees as
she may choose in her last will and testament. It is to be noted that the
conjugal properties referred to are those that were actually existing at
that time, December 26, 1936. Simeon Blas died on January 9, 1937. On
June 2, 1937, an inventory of the properties left by him, all considered
conjugal, was submitted by Maxima Santos herself as administratrix of his
estate. A list of said properties is found in Annex "E", the complete
inventory submitted by Maxima Santos Vda. de Blas, is administratrix of
the estate of her husband, dated March 10, 1939. The properties which
were given to Maxima Santos as her share in the conjugal properties are
also specified in the project of partition submitted by said Maxima Santos
herself on March 14, 1939. (Record on Appeal, pp. 195-241.) Under Exhibit
"A", therefore, Maxima Santos contracted the obligation and promised to
give one-half of the above indicated properties to the heirs and legatees
of Simeon Blas.
Counsel for the defendant-appellee claims Exhibit "A" is a worthless piece
of paper because it is not a will nor a donation mortis causa nor a
contract. As we have in indicated above, it is a compromise and at the
same time a contract with a sufficient cause or consideration. It is also
contended that it deals with future inheritance. We do not think that
Exhibit "A" is a contract on future inheritance. it is an obligation or
promise made by the maker to transmit one-half of her share in the
conjugal properties acquired with her husband, which properties are
stated or declared to be conjugal properties in the will of the husband.
The conjugal properties were in existence at the time of the execution of
Exhibit "A" on December 26, 1936. As a matter of fact, Maxima Santos
included these properties in her inventory of her husband's estate of June
2, 1937. The promise does not refer to any properties that the maker
would inherit upon the death of her husband, because it is her share in
the conjugal assets. That the kind of agreement or promise contained in
Exhibit "A" is not void under Article 1271 of the old Civil Code, has been
decided by the Supreme Court of Spain in its decision of October 8,
19154, thus:
P a g e 85 | 111

Occurs (Art 777)
: When Succession
Que si bien el art. 1271 del Codigo civil dispone que sobre la
herenciafutura no se podra celebrar otros contratos que aquellos
cuyo objecto seapracticar entre vivos la division de un caudal,
conforme al articulo 1056, esta prohibicion noes aplicable al caso,
porque la obligacion que contrajoel recurr en contrato privado de
otorgar testamento e instituir heredera a su subrina de los bienes
que adquirio en virtud de herencia, procedentes desu finada
consorte que le quedasen sobrantes despues de pagar las deudas, y
del ganacial que se expresa, asi como de reconocer, ademas, con
alguna cosaa otros sobrinos, se refiere a bienes conocidos y
determinados existentes cuando tal compromisi se otorgo, y no a la
universalidad de una herencia que, sequn el art. 659 del citado
Codigo civil, as determina a muerte, constituyendola todos los
bienes, derechos y obligaciones que por ella no sehayan extinguido:
..." (Emphasis supplied.)
It will be noted that what is prohibited to be the subject matter of a
contract under Article 1271 of the Civil Code is " future inheritance." To
us future inheritance is any property or right not in existence or capable
of determination at the time of the contract, that a person may in the
future acquire by succession. The properties subject of the contract
Exhibit "A" are well defined properties, existing at the time of the
agreement, which Simeon Blas declares in his statement as belonging to
his wife as her share in the conjugal partnership. Certainly his wife's
actual share in the conjugal properties may not be considered
as future inheritance because they were actually in existence at the time
Exhibit "A" was executed.
The trial court held that the plaintiffs-appellants in the case at bar are
concluded by the judgement rendered in the proceedings for the
settlement of the estate of Simeon Blas for the reason that the properties
left by him belonged to himself and his wife Maxima Santos; that the
project of partition in the said case, adjudicating to Maxima Santos onehalf as her share in the conjugal properties, is a bar to another action on
the same subject matter, Maxima Santos having become absolute owner
of the said properties adjudicated in her favor. As already adverted to
above, these contentions would be correct if applied to the claim of the
plaintiffs-appellants that said properties were acquired with the first wife
of Simeon Blas, Marta Cruz. But the main ground upon which plaintiffs
base their present action is the document Exhibit "A", already fully
considered above. As this private document contains the express promise
made by Maxima Santos to convey in her testament, upon her death, onehalf of the conjugal properties she would receive as her share in the
conjugal properties, the action to enforce the said promise did not arise
until and after her death when it was found that she did not comply with
P a g e 86 | 111

Occurs (Art 777)
: When Succession
her above-mentioned promise. (Art. 1969, old Civil Code.) The argument
that the failure of the plaintiffs-appellants herein to oppose the project of
partition in the settlement of the estate of Simeon Blas, especially that
portion of the project which assigned to Maxima Santos one-half of all the
conjugal properties bars their present action, is, therefore, devoid of
merit. It may be added that plaintiffs-appellants did not question the
validity of the project of partition precisely because of the promise made
by Maxima Santos in the compromise Exhibit "A"; they acquised in the
approval of said project of partition because they were relying on the
promise made by Maxima Santos in Exhibit "A", that she would transmit
one-half of the conjugal properties that she was going to receive as her
share in the conjugal partnership upon her death and in her will, to the
heirs and legatees of her husband Simeon Blas.
Neither can the claim of prescription be considered in favor of the
defendants. The right of action arose at the time of the death of Maxima
Santos on October 5,1956, when she failed to comply with the promise
made by her in Exhibit "A". The plaintiffs-appellants immediately
presented this action on December 27, 1956, upon learning of such failure
on the part of Maxima Santos to comply with said promise. This defense
is, therefore, also without merit.
It is next contended by the defendant-appellee that Maxima Santos
complied with her above-mentioned promise, that Andres Pascual,
Tomasa Avelino, Justo Garcia, Ludovico Pimpin and Marta Gervacio Blas
were given substancial legacies in the will and testament of Maxima
Santos. To determine whether she had actually complied with the promise
made in Exhibit "A", there is herein set forth a list only of the
fishponds and their respective areas as contained in the list of properties
she acquired as her share in the conjugal partnership, which list includes,
besides many ricelands as well as residential lots, thus:
31. Paco, Obando, Bulacan
5.8396 has.
32. Pangjolo, Obando
3.5857
34. Batang Pirasuan, Lubao,

Pampanga
11.9515
"
35. Calangian, Lubao, Pampanga
30.2059
"
"
P a g e 87 | 111

Occurs (Art 777)
: When Succession
215.4325
"
38. Bakuling, Lubao, Pampanga
39. Bakuling, Lubao, Pampanga
8.3763
"
23.0730
"
40. Bangkal, Sinubli
41. Tagulod,
44. Bangkal Pugad
6.8692
(a 34.2779
)
"
(b 51.7919
)
"
(c
) 2.5202
45. Magtapat Bangkal, Lubao,

Pampanga
"
"
(a 18.0024
)
(b
) 7.3265
(c 53.5180
)
"
"
"
P a g e 88 | 111

Occurs (Art 777)
: When Succession
46. Pinanganakan, Lubao,

Pampanga
159.0078
"
47. Emigdio Lingid, Lubao,

Pampanga
34.5229
"
80.5382
"
43.3350
"
48. Propios, Lubao, Pampanga
49. Batang Mabuanbuan,

Sexmoan, Pampanga
50. Binatang Mabuanbuan,

Sexmoan, Pampanga
51. Sapang Magtua, Sexmoan,

Pampanga
52. Kay Limpin, Sexmoan,

Pampanga
53. Calise Mabalumbum,

Sexmoan, Pampanga
54. Messapinit Kineke,

Sexmoan, Pampanga
3.5069
"
56,8242
5.0130
"
"
23.8935
"
(a
) 5.2972
"
(b
) 5.9230
"
(c 1.4638
"
P a g e 89 | 111

Occurs (Art 777)
: When Succession
(d
) 1.4638
"
(e
) 2.8316
"
10.4412
"
(f)
(g
) 3.9033
"
(h 11.9263
)
(i) 6.0574
55. Dalang, Banga, Sexmoan,

Pampanga
"
"
23.3989
"
147.1242
"
62. Alaminos, Pangasinan
80. Mangasu Sexmoan,

Pampanga
81. Don Tomas, Sexmoan,

Pampanga
10.000
21.6435
"
"
P a g e 90 | 111

Occurs (Art 777)
16.0000
"
82. Matikling, Lubao, Pampanga
Total
area ...............................
: When Succession
1045.7863
"
(See Record on
Record, pp. 195-241.)
In her will, Maxima Santos devised to Marta Gervacio Blas the 80-hectare
fishpond situated in Lubao, Pampanga. The fishpond devised is evidently
that designated as "Propios" in Lubao, Pampanga, item No. 8 in the list of
properties adjudicated to her in the project of partition. (Record on
Appeal, p. 215.) Considering that the total area of the fishponds amount
to 1045.7863 hectares, the 80 hectares devised to Marta Gervacio Blas is
not even one-tenth of the total area of the fishponds. Add to this the fact
that in the will she imposed upon Marta Gervacio Blas de Chivi an existing
obligation on said fishponds, namely, its lease in 1957 and the duty to pay
out of the rentals thereof an obligation to the Rehabilitation Finance
Corporation RFC (Ibid., pp. 262-263.) Angelina Blas was given only a lot of
150 square meters in Hulong Duhat, Malabon, Rizal, and Leony Blas, the
sum of P300.00 (Ibid., p. 264.)
It is evident from a consideration of the above figures and facts that
Maxima Santos did not comply with her obligation to devise one-half of
her conjugal properties to the heirs and legatees of her husband. She
does not state that she had complied with such obligation in her will. If
she intended to comply therewith by giving some of the heirs of Simeon
Blas the properties mentioned above, the most that can be considered in
her favor is to deduct the value of said properties from the total amount
of properties which she had undertaken to convey upon her death.
All the issues in the pleadings of the parties and in their respective briefs,
have now been fully discussed and considered. Reiterating what we have
stated above, we declare that by Exhibit "A", a compromise to avoid
litigation, Maxima Santos promised to devise to the heirs and legatees of
her husband Simeon Blas, one-half of the properties she received as her
share in the conjugal partnership of herself and her husband, which share
is specified in the project of partition submitted by herself on March 14,
1939 in the settlement of the estate of her husband, and which is found
P a g e 91 | 111

Occurs (Art 777)
: When Succession
on pages 195 to 240 of the record on appeal and on pages 27 to 46 of the

project of partition, submitted by Maxima Santos herself before the Court
of First Instance of Rizal in Civil Case No. 6707, entitled "Testamentaria del
Finado Don Simeon Blas, Maxima Santos Vda. de Bias, Administradora";
and that she failed to comply with her aforementioned obligation. (Exhibit
"A")
WHEREFORE, the judgment appealed from is hereby reversed and the
defendant-appellee, administratrix of the estate of Maxima Santos, is
ordered to convey and deliver one-half of the properties adjudicated o
Maxima Santos as her share in the conjugal properties in said Civil Case
No. 6707, entitled "Testamentaria del Finado Don Simeon Blas, Maxima
Santos Vda. de Blas, Administradora", to the heirs and the legatees of her
husband Simeon Blas. Considering that all said heirs and legatees,
designated in the will of Simeon Blas as the persons for whose benefit
Exhibit "A" had been executed, have not appeared in these proceedings,
the record is hereby remanded to the court below, with instructions that,
after the conveyance of the properties hereinabove ordered had been
effected, the said heirs and legatees (of Simeon Blas) file adversary
pleadings to determine the participation of each and every one of them in
said properties. Costs against the defendant- appellee Rosalina Santos.
Padilla, Parades and Dizon, JJ., concur.
Reyes, J.B.L. and Barrera, JJ., concur in a separate opinion.
Bengzon, C.J., reserves his vote.
Concepcion, J., took no part.
Separate Opinions
REYES, J.B.L., J., concurring:
I concur in the opinion of Mr. Justice Labrador, and would only add that the
doctrine in the decision of 8 October 1915 of the Supreme Court of Spain,
applied in the main opinion, is not a mere accident nor an isolated
instance, but one of a series of decisions reaffirming the legal proposition
therein laid down. Thus, the Presiding Justice Castan of the Spanish
Tribunal Supremo, in volume 3 of his Treaties on Civil Law (1951 Edition,
page 344, footnote 2), observes that:
(2) IA sentencia de 16 de mayo de 1940 declare que segun la
doctrina sentada por el Tribunal Supremo en sua fallos de 8 de
Octubre de 1915 y 26 de Octubre de 1926 y por la Direction de los
Registros en au resolution de 19 de mayo de 1917, la prohibition
P a g e 92 | 111

Occurs (Art 777)
: When Succession
contenida en el art. 1271 se refiere unica y exclusivamente a los

paetos sobre la universalidad de una heren cia que, segun el art.
659, se determine a la muerte del cau sante constituyendola todos
los bienes, derechos y obligaciones que por ella no se hayan
extinguido y no al pacto sobre bienes conocidos y determinados,
existentes cuando tal compromiso se otorgo, en el dominio del
cedente.
And in a later decision of 25 April 1951, the Supreme Court of Spain once
ore insisted on the rule that a successional agreement concerning
property already owned by the grantor at the time the contract was
perfected is not banned by, Article 1271 of the Spanish Civil Code
according to Article 1847 of the Civil Code of the Philippines):
CONSIDERANDO: Que el tercer motive del recurso de doa M. G. G.,
y el sexto del formulado por doa D. G. G., hacen roferencia a la
ultima de las tres cuestiones que son ob jato del debate en ambos
recurso interpuestos esto es la dis cutida cesion que las hermanas
senoras G. G., hoy recurrentes, hicieron a doa C. A. de la mitad de
los bienes muebles e innuebles que recibiesen por herencia de
doa M. P.,procedentes de la de doa M. A. P., antes N., consignada
en documents privado de fecha 2 de noviembre de 1929, firmado y
reconocida su autenticidad por las tres senoras interesa das, cuya
validez y eficacia es objeto de la cuarta pieza de los presentee
autos acumulados y si se examination con determiento el
documento aludido y el acto que en el se consigna habra de
advertirse de modo notorio que se halla afectado de vicio de
nulidad porque su objeto son unos bienes que clara mente se
petpresa que han de entrar en el patrimonio de las cendentes
mediantes una transmission hereditaria, lo que conatituye el pacto
sobre herencia futura prohibido por el parrafo segundo del articulo
1271 del Codigo Civil, ya que no se concreta sobre bienes conocido
y determinados, existentes en el del cedents cuando el compromiso
de otorgo, sino que se refiem a la universalidad de que habrian de
adra la muerte del causante sentido en el que conforme a la
jurisprudencia de esta Sala es de plena aplicacion la norma a tiva
antes citada, y al no haberio asi entendido la Sala de instancia, ha
incurrido en la infmccion de interpreter erro to y por ello ha hecho
aplicacion de indebida de dicho precepto y precede la estimacion de
los motivo que aprincipio se citan y que denuncian la estimada
infraccion, produciendo la casacion de la sentencia recurrida en el
extremo a que los dichos motives se refieren. (Sentencia 25 abril
1951) (Emphasis Supplied)
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It can thus be seen that the constant authoritative in interpretation of the

prohibition against agreements involving future inheritance requires not
only that a future succession be contemplated but also that the subject
matter of the bargain should be either the universality or complex or
mass of property owned by the grantor at the time of his death, or else an
aliquot portion thereof. Castan, in his Treaties already mentioned, sums up
the rulings in this wise:
Por otra parte, se ha de entender: 1. Que la cesion oenajenacion de
los derechos hereditarios puede bacerse una vez falle cido el
causante, aunque no se haya entrado en possession matetrial de
los bienes 2. Que la prohibition legal se refiere solo a los contratos
concluidos sobre la herencia misma o alguna de sus cuotas, no
sobre objetos aislados que, eventualmente, hayan de adquirirse a
virtud de la herencia.
It has been contended that the doctrine thus stated confuses future
inheritance (herencia futura) with futureproperty (bienes futuros). This is a
misapprehension. In construing the term "future inheritance" as the
contingent universality or complex of property rights and obligations that
are passed to the heirs upon the death of the grantor, the rule advocated
merely correlates the prohibition against contracts over "future
inheritance" with the definition of "inheritance" given in Article 659 of the
Spanish Civil Code, which is now Article 776 of the Civil Code of the
Philippines:
ART. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
The inheritance of a person may, and usually does, include not only
property that he already owns at a given time, but also his future
property, that is to say, the property that he may subsequently acquire.
But it may include only future property whenever he should dispose of the
present property before he dies. And future inheritance may include only
property he already owns at any given moment, if he should thereafter
acquire no other property until his death. In any case, the inheritance or
estate cons of the totality of and liabilities he holds at the time of his
demise, and not what he at any other time. If the questioned contract
envisages all or a fraction of that contingent mass, then it is a contract
over herencia futurall otherwise it is not. The statutory prohibition, in
other words, is not so much concerned with the process of transfer as with
the subject matter of the bargain. It is addressed to "future inheritance",
not "future succession".
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Of course, it can be said that every single item of property that a man
should hold at any given instant of his life may become a part of his
inheritance if he keeps it long enough. But is that mere possibility (or
even probability) sufficient to do upon a contract over an individual item
of existing property the outlaw brand of "contract over future
inheritance"? If it should ever be, then no agreement concerning present
property can escape the legal ban. No donation inter vivos, no
reversionary clause, no borrowing of money, and no alienation, not even a
contract of sale (or other contract in praisenti for that matter), with or
without deferred delivery, will avoid the reproach that it concerns or
affects the grantor's "future inheritance". It is permissible to doubt
whether the law ever contemplated the sweeping away of the entire
contractual system so carefully regulated in the Code.
The restrictive interpretation given by the Spanish Supreme Court to the
codal prohibition of agreements involving future inheritance is justified
not only by the fact that the prohibition limits contractual freedom (and
therefore, should not be given extensive interpretation), but also because
there is no real or substantial difference between (1) an agreement
whereby a person, for a valuable consideration, agrees to bequeath some
of the property he already owns, and (2) a contract whereby he dispose of
that property, subject to the condition that he will be entitled to its
usufruct until the time he dies. The court has repeatedly sanctioned even
donations inter vivoswherein the donor has reserved to elf the right to
enjoy the donated property for the remainder of his days, and riders the
actual transfer of on to the time of his death (Guzman vs. Ibea 67 Phil.
633; Balagui vs Dongso, 53 Phil. 673; Laureta vs. Mata, 44 Phil. 668).
Whatever objection is raised against the effects of the first kind of
contracts can be made to apply to the second.
Mature reflection will show that where present (existing) property is the
object of the bargain, all arguments brandished against Conventions over
future succession (post mortem) are just as applicable to other
contracts de praesenti with deferred execution, the validity of which has
never been questioned. Thus, the loss of the power to bequeath the
bargained property to persons of the grantor's choice, and the awakening
of the grantee's desire for the early death of the grantor (the Roman
"votum mortis captandae") in order to obtain prompt control of the
contracted goods, occur in both cases. In truth, the latter ground would
bar even a contract of life insurance in favor of a stated beneficiary. It
may also be noted that since the later part of the nineteenth century, the
civilists have recognized that the progress in social relations has rendered
such objections obsolete (Puig Pea, Derecho Civil, Vol. V, part I, 613 et
seq.).
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But where the contract involves the universality of the estate that will be
left at a person's death (the "herencia future" as understood by the
Spanish Tribunal Supreno), there is another reason which I believe to be
the true justification for the legal interdiction, and it is this: that if a man
were to be allowed to bargain away all the property he expects to leave
behind (i.e., his estate as a whole), he would practically remain without
any incentive to practice thrift and frugality or to conserve and invest his
earnings and property. He would then be irresistibly drawn to be a
wasteful spend-thrift, a social parasite, without any regard for his future,
because whatever he leaves belong to another by virtue of his contract.
The disastrous effects upon family and society if such agreements were to
be held binding can be readily imagined. Hence, the interpretation given
to Article 1271 (now Art. 1347) by the Supreme Court of Spain appears
amply supported by practical reasons, and there is no ground to deny its
application.
Much emphasis has been placed on the provisions of the contract Exhibit
"A" that the widow, Maxima Santos de Blas, would execute a testament in
favor of the appellees. To me this is purely secondary, since it is merely
the method selected by the parties for carrying out the widow's
agreement to convey to the appellees the property in question without
her losing its enjoyment during her natural life, and does not affect the
substance or the validity of the transaction. To ensure the widow's
possession of the property and the perception of its fruits while she was
alive the means logically selected was to return it by will, since such a
conveyance could only be operative after death. There might be a doubt
as to the validity of this arrangement if the widows promise had been
purely gratuitous, because then it could be argued that the promise
involved a hybrid donation mortis causa yet irrevocable;1 but here the
obligation to return is concededly irrevocable and supported by adequate
consideration duly received in advance.
Since the agreement in the instant case did not refer to the future estate
of the widow of Blas, but only to part of her present property at the time
the contract was made; since the promise to retransfer one-half of her
conjugal share was supported by adequate consideration as shown in the
main decision; since the contract obviated protracted litigation and
complicated accounting in settling the conjugal partnership of Blas and
his first (deceased) wife; and since the testament that the widow
promised to make was merely the mode chosen to perform the contract
and carry out the promised devolution of the property, being thus of
secondary importance, I can see no reason for declaring the entire
arrangement violative of the legal interdiction of contracts over future
inheritance, and disappoint the legitimate expectation held by the heirs of
the first wife during all these years.
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BARRERA, J., concurring:

It seems to me clear that the document Exhibit "A", basis of the action of
the plaintiffs-appellants, refers specifically to and affects solely the share
of the grantor Maxima Santos in the conjugal properties as determined
and specified in the will of her husband Simeon Blas, whose provisions,
which she expressly acknowledged to have read and understood,
constitute the raison d'etre of her promise to deliver or convey, by will,
one-half of that specific share to the heirs and legatees named in her
husband's will (who are his heirs by his first marriage). Nowhere in the
document Exhibit "A" is there reference, to hereditary estate that she
herself would leave behind at the time of her own demise which legally
would be her "future inheritance." For this reason, I believe the
contractual obligation assumed by Maxima Santos in virtue of Exhibit "A"
does not come within the prohibition of Article 1271 of the Spanish Civil
Code, now Article 1347 of the Civil Code of the Philippines.
I, therefore, concur in the opinions of Justices Labrador and Reyes.
BAUTISTA ANGELO, J., dissenting:

While I agree with the theory that the document Exhibit "A" does not
involve a contract on future inheritance but a promise made by Maxima
Santos to transmit one-half of her share in the conjugal property acquired
during her marriage to Simeon Blas to the heirs and legatees of the latter,
I am however of the opinion that herein appellants have no cause of
action because Maxima Santos has Substantially complied with her
promise.
It should be noted that Maxima Santos' promise to transmit is predicated
on the condition that she can freely choose and select from among the
heirs and legatees of her husband those to whom she would like to give
and bequeath depending on the respect, service and companionship that
they may render to her. Her commitment is not an absolute promise to
give to all but only to whom she may choose and select. And here this
promise has been substantially complied with.
Thus, it appears that Maxima Santos selected eight such heirs and
legatees instituted in the will of her husband. Note that appellant Marta
Gervacio Bias, who has given a legacy of only P38,000.00 in the will of
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Simeon Blas, who was given by her a legacy worth around P400,000.00,
appellants Loida Gervacio Blas (or Luding Blas) and Leoncio (Leony)
Gervacio Blas were given a legacy of P300.00 each every year to last
during their lifetime; And Lorenzo Santos was given a legacy of two
fishponds and one-tenth of the whole residuary estate. It may be stated
that although appellant Maria Gervacio Blas was not given any legacy in
Maxima Santos' will, yet her son Simeon Dungao was given a legacy of a
residential land in Tonsuya, Malabon.
I, therefore, consider not in keeping with the nature of the pledge made
by Maxima Santos the decision of the majority in ordering her
administratrix to convey and deliver one-half of her share in the conjugal
property to all the heirs and legatees of her husband Simeon Blas,
because only such heirs and legatees are entitled to share in the property
as may be selected by Maxima Santos, and this she has already done. For
these reasons, I dissent.
Footnotes
REYES, J., concurring:
1
Note that the original "pactum successorium" was essentially

gratuitous: "che e essenzialmente a titulo gratuito" (Stolfi Diritto
Civile Vol. 6)
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G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE
DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO
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: When Succession
DE BORJA (deceased) as Children of Josefa Tangco, appellees,

vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de
Borja,appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE
BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco
de Borja,plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa
Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.
REYES, J.B.L., J.:p

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de
Borja, special administratrix of the testate estate of Francisco de Borja, 1 from the approval of a
compromise agreement by the Court of First Instance of Rizal, Branch I, in its Special Proceeding No.
R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja, Administrator".
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Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same
compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special
Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de
Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the
Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda
Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as the
separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the
community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his
testate estate, which is under administrator in Special Proceeding No. 832 of the Court of First
Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October
1940, filed a petition for the probate of her will which was docketed as Special Proceeding No.
R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In
1946, Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de
Borja, was appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the
sole administrator of the testate estate of his mother, Josefa Tangco. While a widower Francisco
de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death,
Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in
1955, she was appointed special administratrix. The validity of Tasiana's marriage to Francisco
was questioned in said proceeding.
The relationship between the children of the first marriage and Tasiana Ongsingco has been
plagued with several court suits and counter-suits; including the three cases at bar, some
eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa
Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to
all these litigations, a compromise agreement was entered into on 12 October 1963, 2 by and
between "[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja
personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by
her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of the compromise agreement are as
follows:
AGREEMENT
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage, namely, Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton
Jr.
WITNESSETH
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THAT it is the mutual desire of all the parties herein terminate and settle, with
finality, the various court litigations, controversies, claims, counterclaims, etc.,
between them in connection with the administration, settlement, partition,
adjudication and distribution of the assets as well as liabilities of the estates of
Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja.
THAT with this end in view, the parties herein have agreed voluntarily and without
any reservations to enter into and execute this agreement under the following
terms and conditions:
1. That the parties agree to sell the Poblacion portion of the Jalajala properties
situated in Jalajala, Rizal, presently under administration in the Testate Estate of
Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as
follows:
Linda al Norte con el Rio Puwang que la separa de la jurisdiccion
del Municipio de Pililla de la Provincia de Rizal, y con el pico del
Monte Zambrano; al Oeste con Laguna de Bay; por el Sur con los
herederos de Marcelo de Borja; y por el Este con los terrenos de
la Familia Maronilla
with a segregated area of approximately 1,313 hectares at the amount of P0.30
per square meter.
2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco
Vda. de de Borja the total amount of Eight Hundred Thousand Pesos (P800,000)
Philippine Currency, in cash, which represent P200,000 as his share in the
payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and
Matilde, all surnamed de Borja and this shall be considered as full and complete
payment and settlement of her hereditary share in the estate of the late
Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832Nueva Ecija and Sp. Proc. No. 7866-Rizal, respectively, and to any properties
bequeathed or devised in her favor by the late Francisco de Borja by Last Will
and Testament or by Donation Inter Vivos or Mortis Causa or purportedly
conveyed to her for consideration or otherwise. The funds for this payment shall
be taken from and shall depend upon the receipt of full payment of the proceeds
of the sale of Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that
particular obligation incurred by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now Development Bank of the Philippines,
amounting to approximately P30,000.00 and also assumes payment of her 1/5
share of the Estate and Inheritance taxes on the Estate of the late Francisco de
Borja or the sum of P3,500.00, more or less, which shall be deducted by the
buyer of Jalajala, "Poblacion" from the payment to be made to Tasiana
Ongsingco Vda. de Borja under paragraph 2 of this Agreement and paid directly
to the Development Bank of the Philippines and the heirs-children of Francisco
de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay
directly to Tasiana Ongsingco Vda. de de Borja the balance of the payment due
her under paragraph 2 of this Agreement (approximately P766,500.00) and issue
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: When Succession
in the name of Tasiana Ongsingco Vda. de de Borja, corresponding certified

checks/treasury warrants, who, in turn, will issue the corresponding receipt to
Jose de Borja.
5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja,
Jose de Borja personally and as administrator of the Testate Estate of Josefa
Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves and for their
heirs, successors, executors, administrators, and assigns, hereby forever
mutually renounce, withdraw, waive, remise, release and discharge any and all
manner of action or actions, cause or causes of action, suits, debts, sum or sums
of money, accounts, damages, claims and demands whatsoever, in law or in
equity, which they ever had, or now have or may have against each other, more
specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No.
832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with the
Provincial Fiscal of Rizal, the intention being to completely, absolutely and finally
release each other, their heirs, successors, and assigns, from any and all liability,
arising wholly or partially, directly or indirectly, from the administration,
settlement, and distribution of the assets as well as liabilities of the estates of
Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja, and
lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically renounce
absolutely her rights as heir over any hereditary share in the estate of Francisco
de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under
paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles
and documents belonging to Francisco de Borja which are in her possession and
said heir Jose de Borja shall issue in turn the corresponding receive thereof.
7. That this agreement shall take effect only upon the fulfillment of the sale of the
properties mentioned under paragraph 1 of this agreement and upon receipt of
the total and full payment of the proceeds of the sale of the Jalajala property
"Poblacion", otherwise, the non-fulfillment of the said sale will render this
instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the
City of Manila, Philippines, the 12th of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963
to the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August
1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana
Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the
compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special
administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval
(now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the
order of disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised agreement of 12 October 1963 is not
disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1)
the heirs cannot enter into such kind of agreement without first probating the will of Francisco de
Borja; (2) that the same involves a compromise on the validity of the marriage between
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: When Succession
Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to
have force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the
Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479,
wherein the Court's majority held the view that the presentation of a will for probate is mandatory
and that the settlement and distribution of an estate on the basis of intestacy when the decedent
left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana
Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an
extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that
"(if) the decedentleft no will and no debts, and the heirs are all of age, or the minors are
represented by their judicial and legal representatives ..." The will of Francisco de Borja having
been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement
was made, those circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja
stresses that at the time it was entered into, on 12 October 1963, the governing provision was
Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial
settlement of the estate of a deceased person regardless of whether he left a will or not. He also
relies on the dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein
was expressed the view that if the parties have already divided the estate in accordance with a
decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate
in a different manner, the probate of the will is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent
from an examination of the terms of the agreement between Jose de Borja and Tasiana
Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of P800,000
payable to Tasiana Ongsingco
shall be considered as full complete payment settlement of her hereditary
share in the estate of the late Francisco de Borja as well as the estate of Josefa
Tangco, ... and to any properties bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for consideration or otherwise.
This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to
the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de
Borja among the heirs thereto before the probate of his will. The clear object of the contract was
merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest,
actual or eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation
as to any other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is
transmitted or vested immediately from the moment of the death of such causante or
predecessor in interest (Civil Code of the Philippines, Art. 777) 3 there is no legal bar to a
successor (with requisite contracting capacity) disposing of her or his hereditary share immediately
after such death, even if the actual extent of such share is not determined until the subsequent
liquidation of the estate. 4 Of course, the effect of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not
affect the validity of the transaction; neither does the coetaneous agreement that the numerous
litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them,
Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation,
as noted by the Rizal Court, gives the contract the character of a compromise that the law favors, for
obvious reasons, if only because it serves to avoid a multiplicity of suits.
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It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja,
Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code.
Wherefore, barring unworthiness or valid disinheritance, her successional interest existed
independent of Francisco de Borja's last will and testament and would exist even if such will
were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in
the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de
Borja.
Since the compromise contract Annex A was entered into by and between "Jose de Borja
personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on
the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in their
individual capacities, upon the perfection of the contract, even without previous authority of the
Court to enter into the same. The only difference between an extrajudicial compromise and one
that is submitted and approved by the Court, is that the latter can be enforced by execution
proceedings. Art. 2037 of the Civil Code is explicit on the point:
8. Art. 2037. A compromise has upon the parties the effect and authority of res
judicata; but there shall be no execution except in compliance with a judicial
compromise.
It is argued by Tasiana Ongsingco that while the agreement Annex A expressed
no definite period for its performance, the same was intended to have a
resolutory period of 60 days for its effectiveness. In support of such contention, it
is averred that such a limit was expressly stipulated in an agreement in similar
terms entered into by said Ongsingco with the brothers and sister of Jose de
Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de Borja, except that
the consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L28040, pp. 39- 46) and which contained the following clause:
III. That this agreement shall take effect only upon the consummation of the sale
of the property mentioned herein and upon receipt of the total and full payment of
the proceeds of the sale by the herein owner heirs-children of Francisco de
Borja, namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided
that if no sale of the said property mentioned herein is consummated, or the nonreceipt of the purchase price thereof by the said owners within the period of sixty
(60) days from the date hereof, this agreement will become null and void and of
no further effect.
Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to
this particular contract (Annex 1), and that the same appears not to have been finalized, since it
bears no date, the day being left blank "this day of October 1963"; and while signed by the
parties, it was not notarized, although plainly intended to be so done, since it carries a proposed
notarial ratification clause. Furthermore, the compromise contract with Jose de Borja (Annex A),
provides in its par. 2 heretofore transcribed that of the total consideration of P800, 000 to be paid
to Ongsingco, P600,000 represent the "prorata share of the heirs Crisanto, Cayetano and
Matilde all surnamed de Borja" which corresponds to the consideration of P600,000 recited in
Annex 1, and that circumstance is proof that the duly notarized contract entered into wit Jose de
Borja under date 12 October 1963 (Annex A), was designed to absorb and supersede the
separate unformalize agreement with the other three Borja heirs. Hence, the 60 days resolutory
term in the contract with the latter (Annex 1) not being repeated in Annex A, can not apply to the
formal compromise with Jose de Borja. It is moreover manifest that the stipulation that the sale
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of the Hacienda de Jalajala was to be made within sixty days from the date of the agreement
with Jose de Borja's co-heirs (Annex 1) was plainly omitted in Annex A as improper and
ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold to raise the P800,000
to be paid to Ongsingco for her share formed part of the estate of Francisco de Borja and could
not be sold until authorized by the Probate Court. The Court of First Instance of Rizal so
understood it, and in approving the compromise it fixed a term of 120 days counted from the
finality of the order now under appeal, for the carrying out by the parties for the terms of the
contract.
This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve
the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the
estate of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco
de Borja, whose estate was the object of Special Proceeding No. 832 of the Court of First
Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana
Ongsingco was only her eventual share in the estate of her late husband, not the estate itself;
and as already shown, that eventual share she owned from the time of Francisco's death and the
Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share,
Tasiana could dispose of it in favor of whomsoever she chose. Such alienation is expressly
recognized and provided for by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before
the partition, any or all of the co-heirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the sale, provided they do so within
the period of one month from the time they were notified in writing of the sale of
the vendor.
If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir
could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void
because it amounts to a compromise as to her status and marriage with the late Francisco de
Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de
Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of
her civil status. There is nothing in the text of the agreement that would show that this
recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made
in consideration of the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva
Ecija in its order of 21 September 1964, in Special Proceedings No. 832 (Amended Record on
Appeal in L-28568, page 157), that the compromise agreement of 13 October 1963 (Annex "A")
had been abandoned, as shown by the fact that, after its execution, the Court of First Instance of
Nueva Ecija, in its order of 21 September 1964, had declared that "no amicable settlement had
been arrived at by the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had
stated that the proposed amicable settlement "had failed to materialize".
It is difficult to believe, however, that the amicable settlement referred to in the order and motion
above-mentioned was the compromise agreement of 13 October 1963, which already had been
formally signed and executed by the parties and duly notarized. What the record discloses is that
some time after its formalization, Ongsingco had unilaterally attempted to back out from the
compromise agreement, pleading various reasons restated in the opposition to the Court's
approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because
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Occurs (Art 777)
: When Succession
of the lapse of the allegedly intended resolutory period of 60 days and because the contract was
not preceded by the probate of Francisco de Borja's will, as required by this Court's Guevarra vs.
Guevara ruling; that Annex "A" involved a compromise affecting Ongsingco's status as wife and
widow of Francisco de Borja, etc., all of which objections have been already discussed. It was
natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new
settlement or novatory agreement before seeking judicial sanction and enforcement of Annex
"A", since the latter step might ultimately entail a longer delay in attaining final remedy. That the
attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to
Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and
it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964
referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to
reach a novatory accord can not invalidate the original compromise (Annex "A") and justifies the
act of Jose de Borja in finally seeking a court order for its approval and enforcement from the
Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its
order should be upheld, while the contrary resolution of the Court of First Instance of Nueva
Ecija should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her
unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished,
the value of the Jalajala property has increased. But the fact is that her delay in receiving the
payment of the agreed price for her hereditary interest was primarily due to her attempts to
nullify the agreement (Annex "A") she had formally entered into with the advice of her counsel,
Attorney Panaguiton. And as to the devaluation de facto of our currency, what We said in Dizon
Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if
there were to be a revaluation with every subsequent fluctuation in the values of currency and
properties of the estate", is particularly opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala
(Poblacion), concededly acquired by Francisco de Borja during his marriage to his first wife,
Josefa Tangco, is the husband's private property (as contended by his second spouse, Tasiana
Ongsingco), or whether it forms part of the conjugal (ganancial) partnership with Josefa Tangco.
The Court of First Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was
adequate evidence to overcome the presumption in favor of its conjugal character established by
Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has
become moot and academic, in view of the conclusion reached by this Court in the two
preceding cases (G.R. No. L-28568), upholding as valid the cession of Tasiana Ongsingco's
eventual share in the estate of her late husband, Francisco de Borja, for the sum of P800,000
with the accompanying reciprocal quit-claims between the parties. But as the question may affect
the rights of possible creditors and legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally
acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their title
thereto was duly registered in their names as co-owners in Land Registration Case No. 528 of
the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently,
in 1931, the Hacienda was partitioned among the co-owners: the Punta section went to Marcelo
de Borja; the Bagombong section to Bernardo de Borja, and the part in Jalajala proper
(Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).
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Occurs (Art 777)
: When Succession
The lot allotted to Francisco was described as

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena
Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of
13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal,
pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of
Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No.
7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de
Borja's first wife), seeking to have the Hacienda above described declared exclusive private
property of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that
it was conjugal property of his parents (Francisco de Borja and Josefa Tangco), conformably to
the presumption established by Article 160 of the Philippine Civil Code (reproducing Article 1407
of the Civil Code of 1889), to the effect that:
Art. 160. All property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband or to
the wife.
Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and
exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff
had adduced sufficient evidence to rebut the presumption, and declared the Hacienda de
Jalajala (Poblacion) to be the exclusive private property of the late Francisco de Borja, and his
Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its possession. Defendant
Jose de Borja then appealed to this Court.
The evidence reveals, and the appealed order admits, that the character of the Hacienda in
question as owned by the conjugal partnership De Borja-Tangco was solemnly admitted by the
late Francisco de Borja no less than two times: first, in the Reamended Inventory that, as
executor of the estate of his deceased wife Josefa Tangco, he filed in the Special Proceedings
No. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the
Reamended Accounting of the same date, also filed in the proceedings aforesaid (Exhibit "7").
Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa
Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala
property among the "Conjugal Properties of the Spouses Francisco de Borja and Josefa
Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of Francisco de
Borja, in Special Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted
therein in December, 1955, an inventory wherein she listed the Jalajala Hacienda under the
heading "Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa Tangco,
which are in the possession of the Administrator of the Testate Estate of the Deceased Josefa
Tangco in Special Proceedings No. 7866 of the Court of First Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they are plain admissions
against interest made by both Francisco de Borja and the Administratrix of his estate, in the
course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the legal
presumption in favor of the conjugal community, the Court below declared that the Hacienda de
Jalajala (Poblacion) was not conjugal property, but the private exclusive property of the late
Francisco de Borja. It did so on the strength of the following evidences: (a) the sworn statement
by Francis de Borja on 6 August 1951 (Exhibit "F") that
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Occurs (Art 777)
: When Succession
He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4

parte, 337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de
Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda
had been bought at a foreclosure sale for P40,100.00, of which amount P25,100 was contributed
by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a subsequent
demand from the provincial treasurer for realty taxes the sum of P17,000, Marcelo told his
brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner, and upon
Bernardo's assent to the proposal, Marcelo issue a check for P17,000.00 to pay the back taxes
and said that the amount would represent Francisco's contribution in the purchase of the
Hacienda. The witness further testified that
Marcelo de Borja said that that money was entrusted to him by Francisco de
Borja when he was still a bachelor and which he derived from his business
transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis
supplied)
The Court below, reasoning that not only Francisco's sworn statement overweighed the
admissions in the inventories relied upon by defendant-appellant Jose de Borja since probate
courts can not finally determine questions of ownership of inventoried property, but that the
testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of the original
Hacienda with his private funds, for which reason that share can not be regarded as conjugal
partnership property, but as exclusive property of the buyer, pursuant to Article 1396(4) of Civil
Code of 1889 and Article 148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of the wife or of the husband.
We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de
Borja's testimony as to the source of the money paid by Francisco for his share was plain
hearsay, hence inadmissible and of no probative value, since he was merely repeating what
Marcelo de Borja had told him (Gregorio). There is no way of ascertaining the truth of the
statement, since both Marcelo and Francisco de Borja were already dead when Gregorio
testified. In addition, the statement itself is improbable, since there was no need or occasion for
Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had earned the
P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly discernible in this portion of
Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does
not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal) "
refers precisely to the Hacienda in question. The inventories (Exhibits 3 and 4) disclose that
there were two real properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m.,
assessed at P44,600, and a much bigger one of 1,357.260.70 sq. m., which is evidently the
Hacienda de Jalajala (Poblacion). To which of these lands did the affidavit of Francisco de Borja
(Exhibit "F") refer to? In addition, Francisco's characterization of the land as "mi terreno personal
y exclusivo" is plainly self-serving, and not admissible in the absence of cross examination.
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Occurs (Art 777)
: When Succession
It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and
"7") are not conclusive on the conjugal character of the property in question; but as already
noted, they are clear admissions against the pecuniary interest of the declarants, Francisco de
Borja and his executor-widow, Tasiana Ongsingco, and as such of much greater probative weight
than the self-serving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor
of the conjugal character of the Hacienda de Jalajala (Poblacion) now in dispute has not been
rebutted but actually confirmed by proof. Hence, the appealed order should be reversed and the
Hacienda de Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de
Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower court that claims for damages
should be ventilated in the corresponding special proceedings for the settlement of the estates of
the deceased, the same requires no pro announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in
Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-28568 and L-28611
are reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja in all
three (3) cases.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and
Esguerra, JJ., concur.
Fernando, J., took no part.
Footnotes
1 She died during the pendency of these appeals, being substituted by Atty. Luis
Panaguiton Jr., administrator of the estate (S.C. Resolution, 27 February 1970).
2 Annex A, Record on Appeal, G.R. No. L-28040, pp. 16-21.
3 Also: Osorio vs. Osorio Steamship Co., 41 Phil. 531; Baun vs. Heirs of Baun,
53 Phil. 654; Barretto vs. Tuason, 59 Phil. 845; Cuevas vs. Abesamis, 71 Phil.
147; Jayme vs. Gamboa, 75 Phil. 479; Iballe vs. Po.
4 Garcia vs. David, 67 Phil. 279; Jakosalem vs. Rafols, 73 Phil. 628.
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: When Succession
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Compilation of Cases in Succession - When Succession Occurs

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COMPILATION OF CASES IN LAWS OF SUCCESSION

Occurs (Art 777)

February 27, 1953

BIENVENIDO A. IBARLE, plaintiff-appellant,

Compiled by: aeejercito-beck

COMPILATION OF CASES IN LAWS OF SUCCESSION

7th. That on January 17, 1948 surviving spouse Catalina Navarro

COMPILATION OF CASES IN LAWS OF SUCCESSION

Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo,

G.R. No. L-10474

March 29, 1916

FRANCISCO OSORIO Y GARCIA, plaintiff-appellee,

COMPILATION OF CASES IN LAWS OF SUCCESSION

determined by law, and to the enjoyment of such other rights as are

Compiled by: aeejercito-beck

COMPILATION OF CASES IN LAWS OF SUCCESSION

There is no question in investigating plaintiff's paternity, and we are

COMPILATION OF CASES IN LAWS OF SUCCESSION

COMPILATION OF CASES IN LAWS OF SUCCESSION

G.R. No. L-25049

August 30, 1968

FILEMON RAMIREZ, MONICA RAMIREZ, and JOSE

COMPILATION OF CASES IN LAWS OF SUCCESSION

It appears that on 6 January 1959, Victoriana Eguaras single, made and

Compiled by: aeejercito-beck

COMPILATION OF CASES IN LAWS OF SUCCESSION

deputy provincial sheriff of Laguna, docketed as Civil Case No. SC-319 of

COMPILATION OF CASES IN LAWS OF SUCCESSION

between plaintiffs in this case and Artemio Diawan as administrator"; and

COMPILATION OF CASES IN LAWS OF SUCCESSION

a property of the deceased, allowing its foreclosure without notifying the

G.R. No. L-20609

September 29, 1966

Compiled by: aeejercito-beck

COMPILATION OF CASES IN LAWS OF SUCCESSION

JUAN DE BORJA, MARCELA DE BORJA, SATURNINA DE BORJA,

Compiled by: aeejercito-beck

COMPILATION OF CASES IN LAWS OF SUCCESSION

COMPILATION OF CASES IN LAWS OF SUCCESSION

directed to proceed with the execution accordingly, the respondent judge

Compiled by: aeejercito-beck

COMPILATION OF CASES IN LAWS OF SUCCESSION

WHEREFORE, modifying and/or clarifying the appealed order in the

G.R. No. L-21993

June 21, 1966

Compiled by: aeejercito-beck

COMPILATION OF CASES IN LAWS OF SUCCESSION

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,

COMPILATION OF CASES IN LAWS OF SUCCESSION

COMPILATION OF CASES IN LAWS OF SUCCESSION

be contested in a suit or proceeding, except in an appeal from that

COMPILATION OF CASES IN LAWS OF SUCCESSION

Compiled by: aeejercito-beck

COMPILATION OF CASES IN LAWS OF SUCCESSION

The Court first taking cognizance of the settlement of the estate of

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COMPILATION OF CASES IN LAWS OF SUCCESSION

institution of intestacy proceedings in Rizal may not thus proceed while

G.R. No. L-4963

January 29, 1953

MARIA USON, plaintiff-appellee,

COMPILATION OF CASES IN LAWS OF SUCCESSION