G.R. No. L-4963 January 29, 1953 same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil.
same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment,
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.
This is an action for recovery of the ownership and possession of five (5) parcels of land
situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against
Maria del Rosario and her four children named Concepcion, Conrado, Dominador, and
Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of
Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands
involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson.
However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife
Maria del Rosario took possession illegally of said lands thus depriving her of their possession
and enjoyment.
Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson
and her husband, the late Faustino Nebreda, executed a public document whereby they
agreed to separate as husband and wife and, in consideration of their separation, Maria Uson
was given a parcel of land by way of alimony and in return she renounced her right to inherit
any other property that may be left by her husband upon his death (Exhibit 1).
After trial, at which both parties presented their respective evidence, the court rendered
decision ordering the defendants to restore to the plaintiff the ownership and possession of
the lands in dispute without special pronouncement as to costs. Defendants interposed the
present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda,
former owner of the five parcels of lands litigated in the present case. There is likewise no
dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-law
wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-
defendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the
effectivity of the new Civil Code. With this background, it is evident that when Faustino
Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the
moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code).As this
Court aptly said, "The property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered to them a deed for the
therefore, the rights of inheritance of Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right over the lands in
question because she expressly renounced to inherit any future property that her husband
may acquire and leave upon his death in the deed of separation they had entered into on
February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot
be the subject of a contract nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino
on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants are illegitimate
children of the late Faustino Nebreda and under the old Civil Code are not entitled to any
successional rights, however, under the new Civil Code which became in force in June, 1950,
they are given the status and rights of natural children and are entitled to the successional
rights which the law accords to the latter (article 2264 and article 287, new Civil Code), and
because these successional rights were declared for the first time in the new code, they shall
be given retroactive effect even though the event which gave rise to them may have occurred
under the prior legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides indeed that rights which
are declared for the first time shall have retroactive effect even though the event which gave
rise to them may have occurred under the former legislation, but this is so only when the new
rights do not prejudice any vested or acquired right of the same origin. Thus, said article
provides that "if a right should be declared for the first time in this Code, it shall be effective at
once, even though the act or event which gives rise thereto may have been done or may have
occurred under the prior legislation, provided said new right does not prejudice or impair any
vested or acquired right, of the same origin." As already stated in the early part of this
decision, the right of ownership of Maria Uson over the lands in question became vested in
1945 upon the death of her late husband and this is so because of the imperative provision of
the law which commands that the rights to succession are transmitted from the moment of
death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of
the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of
the vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in state, in a
gesture of pity or compassion, agreed to assign the lands in question to the minor children for
the reason that they were acquired while the deceased was living with their mother and Maria
Uson wanted to assuage somewhat the wrong she has done to them, this much can be said;
apart from the fact that this claim is disputed, we are of the opinion that said assignment, if
any, partakes of the nature of a donation of real property, inasmuch as it involves no material
consideration, and in order that it may be valid it shall be made in a public document and must
be accepted either in the same document or in a separate one (Article 633, old Civil Code).
Inasmuch as this essential formality has not been followed, it results that the alleged
assignment or donation has no valid effect. WHEREFORE, the decision appealed from is
affirmed, without costs.
G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their
father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA,
AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court of
First Instance of Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No.
856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for
reconsideration of its order dismissing the complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla
and wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to
quiet title over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the
hearing of the motion to dismiss, the counsel for the plaintiff moved to amend the complaint
in order to include certain allegations therein. The motion to amend the complaint was
granted and on July 17, 1975, plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the complaint on the
ground that Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said
motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the plaintiff
confirmed the death of Fortunata Barcena, and asked for substitution by her minor children
and her husband, the petitioners herein; but the court after the hearing immediately dismissed
the case on the ground that a dead person cannot be a real party in interest and has no legal
personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the
complaint and on August 23, 1975, he moved to set aside the order of the dismissal pursuant
to Sections 16 and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the
plaintiff for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written
manifestation praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to
substitute their deceased mother, but the court denied the counsel's prayer for lack of merit.
From the order, counsel for the deceased plaintiff filed a second motion for reconsideration of
the order dismissing the complaint claiming that the same is in violation of Sections 16 and 17
of Rule 3 of the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order dismissing the complaint in
Civil Case No. 856 and its orders denying the motion for reconsideration of said order of
dismissal. While it is true that a person who is dead cannot sue in court, yet he can be
substituted by his heirs in pursuing the case up to its completion. The records of this case show
that the death of Fortunata Barcena took place on July 9, 1975 while the complaint was filed
on March 31, 1975. This means that when the complaint was filed on March 31, 1975,
Fortunata Barcena was still alive, and therefore, the court had acquired jurisdiction over her
person. If thereafter she died, the Rules of Court prescribes the procedure whereby a party
who died during the pendency of the proceeding can be substituted. Under Section 16, Rule 3
of the Rules of Court "whenever a party to a pending case dies ... it shall be the duty of his
attorney to inform the court promptly of such death ... and to give the name and residence of
his executor, administrator, guardian or other legal representatives." This duty was complied
with by the counsel for the deceased plaintiff when he manifested before the respondent
Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of
parties in the case. The respondent Court, however, instead of allowing the substitution,
dismissed the complaint on the ground that a dead person has no legal personality to sue. This
is a grave error. Article 777 of the Civil Code provides "that the rights to the succession are
transmitted from the moment of the death of the decedent." From the moment of the death
of the decedent, the heirs become the absolute owners of his property, subject to the rights
and obligations of the decedent, and they cannot be deprived of their rights thereto except by
the methods provided for by law. 3 The moment of death is the determining factor when the
heirs acquire a definite right to the inheritance whether such right be pure or contingent. 4 The
right of the heirs to the property of the deceased vests in them even before judicial declaration
of their being heirs in the testate or intestate proceedings. 5 When Fortunata Barcena,
therefore, died her claim or right to the parcels of land in litigation in Civil Case No. 856, was
not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have
thus acquired interest in the properties in litigation and became parties in interest in the case.
There is, therefore, no reason for the respondent Court not to allow their substitution as
parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the
deceased to appear and be substituted for the deceased, within such time as may be granted
... ." The question as to whether an action 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 the petitioners therein for the
deceased plaintiff and to appoint a qualified person as guardian ad litem for them. Without
pronouncement as to costs.

SO ORDERED.
G.R. No. L-41171 July 23, 1987 No. L-65995 July 23, 1987

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEO- PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and JOSE CUENCO
HERRERA, petitioner, BORROMEO, petitioners,
vs. vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the Court of First HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV, Regional Trial Court of
Instance of Cebu, Branch II, respondents. Cebu; RICARDO V. REYES, Administrator of the Estate of VITO BORROMEO in Sp. Proc. No.
916-R; and DOMINGO L. ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
GUTIERREZ, JR., J.:
No. L-55000 July 23, 1987
These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First Instance of
IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR N. BORROMEO, Cebu.
MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO B. MORALES,
AND CANUTO V. BORROMEO, JR., heirs-appellants, G.R. No. 41171
vs.
FORTUNATO BORROMEO, claimant-appellee. Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in
Paranaque, Rizal at the age of 88 years, without forced heirs but leaving extensive properties in
x - - - - - - - - - - - - - - - - - - - - - - -x the province of Cebu.

No. L-62895 July 23, 1987 On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the
probate of a one page document as the last will and testament left by the said deceased,
JOSE CUENCO BORROMEO, petitioner, devising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal
vs. and undivided shares, and designating Junquera as executor thereof. The case was docketed as
HONORABLE COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As presiding Judge of the Special Proceedings No. 916-R. The document, drafted in Spanish, was allegedly signed and
(now) Regional Trial Court, Branch XV, Region VII, RICARDO V. REYES, as Administrator of the thumbmarked by the deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and
Estate of Vito Borromeo in Sp. Proc. No. 916-R, NUMERIANO G. ESTENZO and DOMINGO L. Felixberto Leonardo who acted as witnesses.
ANTIGUA, respondents.
Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate
x - - - - - - - - - - - - - - - - - - - - - - -x court held that the document presented as the will of the deceased was a forgery.

No. L-63818 July 23, 1987
DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the Intestate Estate of
VITO BORROMEO, Sp. Proceedings No. 916-R, Regional Trial Court of Cebu, joined by HON.
JUDGE FRANCISCO P. BURGOS, as Presiding Judge of Branch XV of the Regional Trial Court of
Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and NUMERIANO
ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO BORROMEO, and PETRA O.
BORROMEO, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
On appeal to this Court, the decision of the probate court disallowing the probate of the will
was affirmed in Testate Estate of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et
al. (19 SCRA 656).
The testate proceedings was converted into an intestate proceedings. Several parties came
before the court filing claims or petitions alleging themselves as heirs of the intestate estate of
Vito Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a
petition for declaration of heirs and determination of heirship. There was no
opposition filed against said petition.
 2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito
heir. The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to this Borromeo. He was married to Remedios Cuenco Borromeo, who died on March 28,
petition. 1968. He had an only son-Atty. Jose Cuenco Borromeo one of the petitioners herein.

3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon c. Crispin Borromeo, who is still alive.
Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora
Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition for 4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left an only daughter,
declaration of heirs and determination of shares. The petition was opposed by the Aurora B. Ocampo, who died on Jan. 30, 1950 leaving the following children:
heirs of Jose and Cosme Borromeo.
a. Anecita Ocampo Castro
4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda
Borromeo Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim.
b. Ramon Ocampo
Jose Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of Carlos
Borromeo represented by Jose Talam filed oppositions to this claim.
c. Lourdes Ocampo
When the aforementioned petitions and claims were heard jointly, the following facts were
established: d. Elena Ocampo, all living, and

1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.
predeceased the former), were survived by their eight (8) children, namely,
5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left the
Jose Ma. Borromeo following children:

Cosme Borromeo a. Marcial Borromeo

Pantaleon Borromeo b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife, Remedios
Alfonso, and his only daughter, Amelinda Borromeo Talam
Vito Borromeo
c. Asuncion Borromeo
Paulo Borromeo
d. Florentina Borromeo, who died in 1948.
Anecita Borromeo
e. Amilio Borromeo, who died in 1944.
Quirino Borromeo and
f. Carmen Borromeo, who died in 1925.
Julian Borromeo
The last three died leaving no issue.
2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his brothers
and sisters predeceased him. 6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and left the
following children:
3. Vito's brother Pantaleon Borromeo died leaving the following children:
a. Exequiel Borromeo,who died on December 29, 1949
a. Ismaela Borromeo,who died on Oct. 16, 1939
 b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children: 3. Vitaliana Borromeo

aa. Federico Borromeo 4. Patrocinio Borromeo Herrera

bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85) 5. Salud Borromeo

cc. Canuto Borromeo, Jr. 6. Asuncion Borromeo

dd. Jose Borromeo 7. Marcial Borromeo

ee. Consuelo Borromeo 8. Amelinda Borromeo de Talam, and

ff. Pilar Borromeo 9. The heirs of Canuto Borromeo

gg. Salud Borromeo The court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided
into 4/9 and 5/9 groups and distributed in equal and equitable shares among the 9
hh. Patrocinio Borromeo Herrera abovenamed declared intestate heirs.

c. Maximo Borromeo, who died in July, 1948 On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera,
signed an agreement of partition of the properties of the deceased Vito Borromeo which was
approved by the trial court, in its order of August 15, 1969. In this same order, the trial court
d. Matilde Borromeo, who died on Aug. 6, 1946
ordered the administrator, Atty Jesus Gaboya, Jr., to partition the properties of the deceased in
the way and manner they are divided and partitioned in the said Agreement of Partition and
e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his children: further ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall be
segregated. All attorney's fees shall be taken and paid from this segregated portion.
aa. Maria Borromeo Atega
On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as heir under
bb. Luz Borromeo the forged will, filed a motion before the trial court praying that he be declared as one of the
heirs of the deceased Vito Borromeo, alleging that he is an illegitimate son of the deceased and
cc. Hermenegilda Borromeo Nonnenkamp that in the declaration of heirs made by the trial court, he was omitted, in disregard of the law
making him a forced heir entitled to receive a legitime like all other forced heirs. As an
dd. Rosario Borromeo acknowledged illegitimate child, he stated that he was entitled to a legitime equal in every
case to four-fifths of the legitime of an acknowledged natural child.
ee. Fe Borromeo Queroz
Finding that the motion of Fortunato Borromeo was already barred by the order of the court
dated April 12, 1969 declaring the persons named therein as the legal heirs of the deceased
On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring
Vito Borromeo, the court dismissed the motion on June 25, 1973.
the following, to the exclusion of all others, as the intestate heirs of the deceased Vito
Borromeo:
Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to
support his motion for reconsideration, Fortunato changed the basis for his claim to a portion
1. Jose Cuenco Borromeo
of the estate. He asserted and incorporated a Waiver of Hereditary Rights dated July 31, 1967,
supposedly signed by Pilar N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V.
2. Judge Crispin Borromeo Borromeo, Jr., Salud Borromeo, Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion
Borromeo, Federico V. Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B.
Talam In the waiver, five of the nine heirs relinquished to Fortunato their shares in the
disputed estate. The motion was opposed on the ground that the trial court, acting as a
probate court, had no jurisdiction to take cognizance of the claim; that respondent Fortunato
Borromeo is estopped from asserting the waiver agreement; that the waiver agreement is void
as it was executed before the declaration of heirs; that the same is void having been executed
before the distribution of the estate and before the acceptance of the inheritance; and that it
is void ab initio and inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding that the five declared
heirs who signed the waiver agreement assigning their hereditary rights to Fortunato
Borromeo had lost the same rights, declared the latter as entitled to 5/9 of the estate of Vito
Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.
In the present petition, the petitioner seeks to annul and set aside the trial court's order dated
December 24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of the estate of
Vito Borromeo and the July 7, 1975 order, denying the motion for reconsideration.
The petitioner argues that the trial court had no jurisdiction to take cognizance of the claim of
respondent Fortunato Borromeo because it is not a money claim against the decedent but a
claim for properties, real and personal, which constitute all of the shares of the heirs in the
decedent's estate, heirs who allegedly waived their rights in his favor. The claim of the private
respondent under the waiver agreement, according to the petitioner, may be likened to that of
a creditor of the heirs which is improper. He alleges that the claim of the private respondent
under the waiver agreement was filed beyond the time allowed for filing of claims as it was
filed only sometime in 1973, after there had been a declaration of heirs (April 10, 1969), an
agreement of partition (April 30, 1969), the approval of the agreement of partition and an
order directing the administrator to partition the estate (August 15, 1969), when in a mere
memorandum, the existence of the waiver agreement was brought out.
It is further argued by the petitioner that the document entitled " waiver of Hereditary Rights"
executed on July 31, 1967, aside from having been cancelled and revoked on June 29, 1968, by
Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo, is without force and effect
because there can be no effective waiver of hereditary rights before there has been a valid
acceptance of the inheritance the heirs intend to transfer. Pursuant to Article 1043 of the Civil
Code, to make acceptance or repudiation of inheritance valid, the person must be certain of
the death of the one from whom he is to inherit and of his right to the inheritance. Since the
petitioner and her co-heirs were not certain of their right to the inheritance until they were
declared heirs, their rights were, therefore, uncertain. This view, according to the petitioner, is
also supported by Article 1057 of the same Code which directs heirs, devicees, and legatees to
signify their acceptance or repudiation within thirty days after the court has issued an order for
the distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the
Civil Code there is no need for a person to be first declared as heir before he can accept or
repudiate an inheritance. What is required is that he must first be certain of the death of the
person from whom he is to inherit and that he must be certain of his right to the inheritance.
He points out that at the time of the signing of the waiver document on July 31, 1967, the
signatories to the waiver document were certain that Vito Borromeo was already dead as well
as of their rights to the inheritance as shown in the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass upon the validity of the waiver
of hereditary rights, respondent Borromeo asserts that since the waiver or renunciation of
hereditary rights took place after the court assumed jurisdiction over the properties of the
estate it partakes of the nature of a partition of the properties of the estate needing approval
of the court because it was executed in the course of the proceedings. lie further maintains
that the probate court loses jurisdiction of the estate only after the payment of all the debts of
the estate and the remaining estate is distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in
an existing inheritance cannot be considered as belonging to third persons with respect to the
heirs, who by fiction of law continue the personality of the former. Nor do such properties
have the character of future property, because the heirs acquire a right to succession from the
moment of the death of the deceased, by principle established in article 657 and applied by
article 661 of the Civil Code, according to which the heirs succeed the deceased by the mere
fact of death. More or less, time may elapse from the moment of the death of the deceased
until the heirs enter into possession of the hereditary property, but the acceptance in any
event retroacts to the moment of the death, in accordance with article 989 of the Civil Code.
The right is vested, although conditioned upon the adjudication of the corresponding
hereditary portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs,
therefore, could waive their hereditary rights in 1967 even if the order to partition the estate
was issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be
effective. For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an intention to relinquish such right. (People v.
Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must
be shown clearly and convincingly, and when the only proof of intention rests in what a party
does, his act should be so manifestly consistent with, and indicative of an intent to, voluntarily
relinquish the particular right or advantage that no other reasonable explanation of his
conduct is possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the waiver document did not have
the clear and convincing intention to relinquish their rights, Thus: (1) On October 27, 1967.
Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled "Compliance" wherein they
submitted a proposal for the amicable settlement of the case. In that Compliance, they
proposed to concede to all the eight (8) intestate heirs of Vito Borromeo all properties,
personal and real, including all cash and sums of money in the hands of the Special
Administrator, as of October 31, 1967, not contested or claimed by them in any action then
pending in the Court of First Instance of Cebu. In turn, the heirs would waive and concede to
them all the 14 contested lots. In this document, the respondent recognizes and concedes that
the petitioner, like the other signatories to the waiver document, is an heir of the deceased
Vito Borromeo, entitled to share in the estate. This shows that the "Waiver of Hereditary
Rights" was never meant to be what the respondent now purports it to be. Had the intent
been otherwise, there would not be any reason for Fortunato, Tomas, and Amelia Borromeo to
mention the heirs in the offer to settle the case amicably, and offer to concede to them parts
of the estate of the deceased; (2) On April 21 and 30, 1969, the majority of the declared heirs
executed an Agreement on how the estate they inherited shall be distributed. This Agreement
of Partition was approved by the trial court on August 15, 1969; (3) On June 29, 1968, the
petitioner, among others, signed a document entitled Deed of Assignment" purporting to
transfer and assign in favor of the respondent and Tomas and Amelia Borromeo all her
(Patrocinio B. Herrera's) rights, interests, and participation as an intestate heir in the estate of
the deceased Vito Borromeo. The stated consideration for said assignment was P100,000.00;
(4) On the same date, June 29, 1968, the respondent Tomas, and Amelia Borromeo (assignees
in the aforementioned deed of assignment) in turn executed a "Deed of Reconveyance" in
favor of the heirs-assignors named in the same deed of assignment. The stated consideration
was P50,000.00; (5) A Cancellation of Deed of Assignment and Deed of Reconveyance was
signed by Tomas Borromeo and Amelia Borromeo on October 15, 1968, while Fortunato
Borromeo signed this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction to pass
upon the validity of the waiver agreement. It must be noted that in Special Proceedings No.
916-R the lower court disallowed the probate of the will and declared it as fake. Upon appeal,
this Court affirmed the decision of the lower court on March 30, 1967, in G.R. No. L-18498.
Subsequently, several parties came before the lower court filing claims or petitions alleging
themselves as heirs of the intestate estate of Vito Borromeo. We see no impediment to the
trial court in exercising jurisdiction and trying the said claims or petitions. Moreover, the
jurisdiction of the trial court extends to matters incidental and collateral to the exercise of its
recognized powers in handling the settlement of the estate.
In view of the foregoing, the questioned order of the trial court dated December 24, 1974, is
hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order of the Court of First
Instance of Cebu, Branch 11, dated December 24, 1974, declaring the waiver document earlier
discussed in G.R. No. 41171 valid. The appellate court certified this case to this Court as the
questions raised are all of law.
The appellants not only assail the validity of the waiver agreement but they also question the
jurisdiction of the lower court to hear and decide the action filed by claimant Fortunato
Borromeo.
The appellants argue that when the waiver of hereditary right was executed on July 31, 1967,
Pilar Borromeo and her children did not yet possess or own any hereditary right in the
intestate estate of the deceased Vito Borromeo because said hereditary right was only
acquired and owned by them on April 10, 1969, when the estate was ordered distributed.
They further argue that in contemplation of law, there is no such contract of waiver of
hereditary right in the present case because there was no object, which is hereditary right, that
could be the subject matter of said waiver, and, therefore, said waiver of hereditary right was
not only null and void ab initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that without any formal
pleading filed by the lawyers of Fortunato Borromeo for the approval of the waiver agreement
and without notice to the parties concerned, two things which are necessary so that the lower
court would be vested with authority and jurisdiction to hear and decide the validity of said
waiver agreement, nevertheless, the lower court set the hearing on September 25, 1973 and
without asking for the requisite pleading. This resulted in the issuance of the appealed order of
December 24, 1974, which approved the validity of the waiver agreement. The appellants
contend that this constitutes an error in the exercise of jurisdiction.
The appellee on the other hand, maintains that by waiving their hereditary rights in favor of
Fortunato Borromeo, the signatories to the waiver document tacitly and irrevocably accepted
the inheritance and by virtue of the same act, they lost their rights because the rights from
that moment on became vested in Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil Code there is no need for a
person to be declared as heir first before he can accept or repudiate an inheritance. What is
required is that he is certain of the death of the person from whom he is to inherit, and of his
right to the inheritance. At the time of the signing of the waiver document on July 31, 1967,
the signatories to the waiver document were certain that Vito Borromeo was already dead and
they were also certain of their right to the inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not acquire jurisdiction over the
claim because of the alleged lack of a pleading invoking its jurisdiction to decide the claim, the
appellee asserts that on August 23, 1973, the lower court issued an order specifically calling on
all oppositors to the waiver document to submit their comments within ten days from notice
and setting the same for hearing on September 25, 1973. The appellee also avers that the
claim as to a 5/9 share in the inheritance involves no question of title to property and,
therefore, the probate court can decide the question.
The issues in this case are similar to the issues raised in G.R. No. 41171. The appellants in this
case, who are all declared heirs of the late Vito Borromeo are contesting the validity of the trial
court's order dated December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the
estate of Vito Borromeo under the waiver agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be validated. The
essential elements of a waiver, especially the clear and convincing intention to relinquish
hereditary rights, are not found in this case.
The October 27, 1967 proposal for an amicable settlement conceding to all the eight (8)
intestate heirs various properties in consideration for the heirs giving to the respondent and to
Tomas, and Amelia Borromeo the fourteen (14) contested lots was filed inspite of the fact that
on July 31, 1967, some of the heirs had allegedly already waived or sold their hereditary rights
to the respondent.
The agreement on how the estate is to be distributed, the June 29, 1968 deed of assignment,
the deed of reconveyance, and the subsequent cancellation of the deed of assignment and
deed of reconveyance all argue against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that the trial
court acquired jurisdiction to pass upon the validity of the waiver agreement because the trial
court's jurisdiction extends to matters incidental and collateral to the exercise of its recognized
powers in handling the settlement of the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative of some of
the heirs-distributees, praying for the immediate closure of Special Proceeding No. 916-R. A
similar motion dated May 29, 1979 was filed by Atty. Jose Amadora. Both motions were
grounded on the fact that there was nothing more to be done after the payment of all the
obligations of the estate since the order of partition and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the aforesaid
motions, petitioner Jose Cuenco Borromeo-filed a petition for mandamus before the Court of
Appeals to compel the respondent judge to terminate and close Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to pending motions to compel the
petitioner, as co-administrator, to submit an inventory of the real properties of the estate and
an accounting of the cash in his hands, pending claims for attorney's fees, and that mandamus
will not lie to compel the performance of a discretionary function, the appellate court denied
the petition on May 14, 1982. The petitioner's motion for reconsideration was likewise denied
for lack of merit. Hence, this petition.
The petitioner's stand is that the inaction of the respondent judge on the motion filed on April
28, 1972 for the closure of the administration proceeding cannot be justified by the filing of
the motion for inventory and accounting because the latter motion was filed only on March 2,
1979. He claimed that under the then Constitution, it is the duty of the respondent judge to
decide or resolve a case or matter within three months from the date of its submission.
The respondents contend that the motion to close the administration had already been
resolved when the respondent judge cancelled all settings of all incidents previously set in his
court in an order dated June 4, 1979, pursuant to the resolution and restraining order issued
by the Court of Appeals enjoining him to maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order dated August 15, 1969. In this
same order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to partition the
properties of the deceased in the way and manner they are divided and partitioned in the said
Agreement of Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of
the estate shall be segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p. 197, Rollo, G.
R. No. 41171) his court has not finally distributed to the nine (9) declared heirs the properties
due to the following circumstances:
1. The court's determination of the market value of the estate in order to segregate
the 40% reserved for attorney's fees;
2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of
the 5/9 of the estate because of the waiver agreement signed by the heirs
representing the 5/9 group which is still pending resolution by this Court (G.R. No.
4117 1);
3. The refusal of administrator Jose Cuenco Borromeo to render his accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of notices
of lis pendens on the different titles of the properties of the estate.
Since there are still real properties of the estate that were not vet distributed to some of the
declared heirs, particularly the 5/9 group of heirs due to the pending resolution of the waiver
agreement, this Court in its resolution of June 15, 1983, required the judge of the Court of First
Instance of Cebu, Branch 11, to expedite the determination of Special Proceedings No. 916-R
and ordered the co-administrator Jose Cuenco Borromeo to submit an inventory of real
properties of the estate and to render an accounting of cash and bank deposits realized from
rents of several properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
 1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated
December 24, 1974;
2. G.R. No. 63818, denying the petition for review seeking to modify the decision of
the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco
P. Burgos from further hearing the Intestate Estate of Vito Borromeo and ordering
the remand of the case to the Executive,Judge of the Regional trial Court of Cebu for
re-raffling; and
3. G.R. No. 65995, granting the petition to restrain the respondents from further
acting on any and all incidents in Special proceedings No. 916-11 because of the
affirmation of the decision of the Intermediate Appellate Court in G.R. No. 63818.
the trial court may now terminate and close Special Proceedings No. 916-R, subject to the
submission of an inventory of the real properties of the estate and an accounting of the call
and bank deposits of the petitioner, as co-administrator of the estate, if he has not vet done
so, as required by this Court in its Resolution dated June 15, 1983. This must be effected with
all deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a motion for
inhibition in the Court of First Instance of Cebu, Branch 11, presided over by Judge Francisco P.
Burgos to inhibit the judge from further acting in Special Proceedings No. 916-R. 'The movants
alleged, among others, the following:
xxx xxx xxx
6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the production
of the certificates of title and to deposit the same with the Branch Clerk of Court,
presumably for the ready inspection of interested buyers. Said motion was granted
by the Hon. Court in its order of October 2, 1978 which, however, became the subject
of various motions for reconsideration from heirs-distributees who contended that as
owners they cannot be deprived of their titles for the flimsy reasons advanced by
Atty, Antigua. In view of the motions for reconsideration, Atty Antigua ultimately
withdraw his motions for production of titles.
7. The incident concerning the production of titles triggered another incident
involving Atty. Raul H. Sesbreno who was then the counsel of herein movants Petra
O. Borromeo and Amelinda B. Talam In connection with said incident, Atty. Sesbreno
filed a pleading which the tion. presiding, Judge Considered direct contempt because
among others, Atty. Sesbreno insinuated that the Hon. Presiding Judge stands to
receive "fat commission" from the sale of the entire property. Indeed, Atty. Sesbreno
was seriously in danger of being declared in contempt of court with the dim prospect
of suspension from the practice of his profession. But obviously to extricate himself
from the prospect of contempt and suspension. Atty. Sesbreno chose rapproachment
and ultimately joined forces with Atty. Antigua, et al., who, together, continued to
harass administrator
xxx xxx xxx
9. The herein movants are informed and so they allege, that a brother of the Hon.
Presiding Judge is married to a sister of Atty. Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are agitating for
the sale of the entire estate or to buy out the individual heirs, on the one hand, and
the herein movants, on the other, who are not willing to sell their distributive shares
under the terms and conditions presently proposed. In this tug of war, a pattern of
harassment has become apparent against the herein movants, especially Jose Cuenco
Borromeo. Among the harassments employed by Atty Antigua et al. are the pending
motions for the removal of administrator Jose Cuenco Borromeo, the subpoena duces
tecum issued to the bank which seeks to invade into the privacy of the personal
account of Jose Cuenco Borromeo, and the other matters mentioned in paragraph 8
hereof. More harassment motions are expected until the herein movants shall finally
yield to the proposed sale. In such a situation, the herein movants beg for an entirely
independent and impartial judge to pass upon the merits of said incidents.
11. Should the Hon. Presiding Judge continue to sit and take cognizance of this
proceeding, including the incidents above-mentioned, he is liable to be
misunderstood as being biased in favor of Atty Antigua, et al. and prejudiced against
the herein movants. Incidents which may create this impression need not be
enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for
reconsideration having been denied, the private respondents filed a petition for certiorari
and/or prohibition with preliminary injunction before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged, among others, the following:
xxx xxx xxx
16. With all due respect, petitioners regret the necessity of having to state herein that
respondent Hon. Francisco P. Burgos has shown undue interest in pursing the sale
initiated by Atty. Domingo L. Antigua, et al. Significantly, a brother of respondent
Hon. Francisco P. Burgos is married to a sister of Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the entire properties of the estate cannot be legally
done without the conformity of the heirs-distributees because the certificates of title
 are already registered in their names Hence, in pursuit of the agitation to sell,
respondent Hon. Francisco P. Burgos urged the heirs-distributees to sell the entire
property based on the rationale that proceeds thereof deposited in the bank will earn
interest more than the present income of the so called estate. Most of the heirs-
distributees, however. have been petitioner timid to say their piece. Only the 4/9
group of heirs led by Jose Cuenco Borromeo have had the courage to stand up and
refuse the proposal to sell clearly favored by respondent Hon. Francisco P. Burgos.
xxx xxx xxx
20. Petitioners will refrain from discussing herein the merits of the shotgun motion of
Atty. Domingo L. Antigua as well as other incidents now pending in the court below
which smack of harassment against the herein petitioners. For, regardless of the
merits of said incidents, petitioners respectfully contend that it is highly improper for
respondent Hon. Francisco P. Burgos to continue to preside over Sp. Proc. No. 916-R
by reason of the following circumstances:
(a) He has shown undue interest in the sale of the properties as initiated by
Atty. Domingo L. Antigua whose sister is married to a brother of respondent.
(b) The proposed sale cannot be legally done without the conformity of the
heirs-distributees, and petitioners have openly refused the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and similar incidents are clearly
intended to harass and embarrass administrator Jose Cuenco Borromeo in
order to pressure him into acceding to the proposed sale.
(d) Respondent has shown bias and prejudice against petitioners by failing
to resolve the claim for attorney's fees filed by Jose Cuenco Borromeo and
the late Crispin Borromeo. Similar claims by the other lawyers were resolved
by respondent after petitioners refused the proposed sale. (pp. 41-43, Rollo)
On March 1, 1983, the appellate court rendered its decision granting the petition for certiorari
and/or prohibition and disqualifying Judge Francisco P. Burgos from taking further cognizance
of Special Proceedings No. 916-R. The court also ordered the transmission of the records of the
case to the Executive Judge of the Regional Trial Court of Region VII for re-raffling.
A motion for reconsideration of the decision was denied by the appellate court on April 11,
1983. Hence, the present petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the case of Intestate Estate of Vito Borromeo and orders the remand of
the case to the Executive Judge of the Regional Trial Court of Cebu for re-raffling.
The principal issue in this case has become moot and academic because Judge Francisco P.
Burgos decided to retire from the Regional Trial Court of Cebu sometime before the latest
reorganization of the judiciary. However, we decide the petition on its merits for the guidance
of the judge to whom this case will be reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They contend
that Judge Burgos has benn shown unusual interest in the proposed sale of the entire estate
for P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim that this disinterest is
shown by the judge's order of March 2, 1979 assessing the property of the estate at
P15,000,000.00. They add that he only ordered the administrator to sell so much of the
properties of the estate to pay the attorney's fees of the lawyers-claimants. To them, the
inhibition of Judge Burgos would have been unreasonable because his orders against the
failure of Jose Cuenco Borromeo, as administrator, to give an accounting and inventory of the
estate were all affirmed by the appellate court. They claim that the respondent court, should
also have taken judicial notice of the resolution of this Court directing the said judge to
"expedite the settlement and adjudication of the case" in G.R. No. 54232. And finally, they
state that the disqualification of judge Burgos would delay further the closing of the
administration proceeding as he is the only judge who is conversant with the 47 volumes of the
records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered that Judge
Burgos appointed Ricardo V. Reyes as co-administrator of the estate on October 11, 1972, yet
Borromeo was singled out to make an accounting of what t he was supposed to have received
as rentals for the land upon which the Juliana Trade Center is erected, from January, 1977 to
February 1982, inclusive, without mentioning the withholding tax for the Bureau of Internal
Revenue. In order to bolster the agitation to sell as proposed by Domingo L. Antigua, Judge
Burgos invited Antonio Barredo, Jr., to a series of conferences from February 26 to 28, 1979.
During the conferences, Atty. Antonio Barredo, Jr., offered to buy the shares of the heirs-
distributees presumably to cover up the projected sale initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed by petitioner
Domingo L. Antigua praying that Jose Cuenco Borromeo be required to file an inventory when
he has already filed one to account for cash, a report on which the administrators had already
rendered: and to appear and be examined under oath in a proceeding conducted by Judge
Burgos lt was also prayed that subpoena duces tecum be issued for the appearance of the
Manager of the Consolidated Bank and Trust Co., bringing all the bank records in the name of
Jose Cuenco Borromeo jointly with his wife as well as the appearance of heirs-distributees
Amelinda Borromeo Talam and another heir distributee Vitaliana Borromeo. Simultaneously
with the filing of the motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a request for the
issuance of subpoena duces tecum to the Manager of Consolidated Bank and 'Trust Co., Inc.;
Register of Deeds of Cebu City; Register of Deeds for the Province of Cebu and another
subpoena duces tecum to Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the Managert
of the bank, the Register of deeds for the City of Cebu, the Register of Deeds for the Province,
of Cebu. and to Jose Cuenco Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the heirs of
Marcial Borromeo who had a common cause with Atty Barredo, Jr., joined petitioner Domingo
L. Antigua by filing a motion for relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoena duces
tecum to private respondent Jose Cuenco Borromeo to bring and produce all the owners"
copies of the titles in the court presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a subpoena duces tecum commanding Atty.
Jose Cuenco Borromeo to bring and produce the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979, before the
date of the hearing, Judge Burgos issued an order denying the private respondents' motion for
reconsideration and the motion to quash the subpoena.1avvphi1
It was further argued by the private respondents that if ,judge Francisco P. Burgos is not
inhibited or disqualified from trying Sp. Proc. No. 916-R, there would be a miscarriage of justice
Because for the past twelve years, he had not done anything towards the closure of the estate
proceedings except to sell the properties of the heirs-distributees as initiated by petitioner
Domingo L. Antigua at 6.7 million pesos while the Intestate Court had already evaluated it at
15 million pesos.
The allegations of the private respondents in their motion for inhibition, more specifically, the
insistence of the trial judge to sell the entire estate at P6,700,000.00, where 4/9 group of heirs
objected, cannot easily be ignored. Suspicion of partiality on the part of a trial judge must be
avoided at all costs. In the case of Bautista v. Rebeuno (81 SCRA 535), this Court stated:
... The Judge must maintain and preserve the trust and faith of the parties litigants.
He must hold himself above reproach and suspicion. At the very first sign of lack of
faith and trust to his actions, whether well grounded or not, the Judge has no other
alternative but inhibit himself from the case. A judge may not be legally Prohibited
from sitting in a litigation, but when circumstances appear that will induce doubt to
his honest actuations and probity in favor or of either partly or incite such state of
mind, he should conduct a careful self-examination. He should exercise his discretion
in a way that the people's faith in the Courts of Justice is not impaired, "The better
course for the Judge under such circumstances is to disqualify himself "That way he
avoids being misunderstood, his reputation for probity and objectivity is preserve ed.
what is more important, the Ideal of impartial administration of justice is lived up to.
In this case, the fervent distrust of the private respondents is based on sound reasons. As
Earlier stated, however, the petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the Intestate Estate of Vito Borromeo case and ordering the remand of
the case to the Executive Judge of the Regional Trial Court for re-raffling should be DENIED for
the decision is not only valid but the issue itself has become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on any and all incidents in
Special Proceedings No. 916-R during the pendency of this petition and No. 63818. They also
pray that all acts of the respondents related to the said special proceedings after March 1,
1983 when the respondent Judge was disqualified by the appellate court be declared null and
void and without force and effect whatsoever.
The petitioners state that the respondent Judge has set for hearing all incidents in Special
Proceedings No. 916-R, including the reversion from the heirs-distributees to the estate, of the
distributed properties already titled in their names as early as 1970, notwithstanding the
pending inhibition case elevated before this Court which is docketed as G.R. No. 63818.
The petitioners further argue that the present status of Special Proceeding No. 916-R requires
only the appraisal of the attorney's fees of the lawyers-claimants who were individually hired
by their respective heirs-clients, so their attorney's fees should be legally charged against their
respective clients and not against the estate.
On the other hand, the respondents maintain that the petition is a dilatory one and barred
by res judicatabecause this Court on July 8, 1981, in G.R. No. 54232 directed the respondent
Judge to expedite the settlement and liquidation of the decedent's estate. They claim that this
resolution, which was already final and executory, was in effect reversed and nullified by the
Intermediate Appellate Court in its case-AC G.R.-No. SP - 11145 — when it granted the petition
for certiorari and or prohibition and disqualified Judge Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916R as well as ordering the transmission of the records
of the case to the Executive Judge of the Regional Trial Court of Region VII for re-raffling on
March 1, 1983, which was appealed to this Court by means of a Petition for Review (G.R. No.
63818).
We agree with the petitioners' contention that attorney's fees are not the obligation of the
estate but of the individual heirs who individually hired their respective lawyers. The portion,
therefore, of the Order of August 15, 1969, segregating the exhorbitantly excessive amount of
40% of the market value of the estate from which attorney's fees shall be taken and paid
should be deleted.
Due to our affirmance of the decision of the Intermediate Appellate Court in G.R. No. 63818,
we grant the petition.
WHEREFORE, —

(1) In G.R. No. 41171, the order of the respondent judge dated December 24, 1974,
declaring the respondent entitled to 5/9 of the estate of the late Vito Borromeo and
the order dated July 7, 1975, denying the petitioner's motion for reconsideration of
the aforementioned order are hereby SET ASIDE for being NULL and VOID;

(2) In G.R. No. 55000, the order of the trial court declaring the waiver document valid
is hereby SET ASIDE;

(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of the
Intermediate Appellate Court disqualifying and ordering the inhibition of Judge
Francisco P. Burgos from further hearing Special Proceedings No. 916-R is declared
moot and academic. The judge who has taken over the sala of retired Judge Francisco
P. Burgos shall immediately conduct hearings with a view to terminating the
proceedings. In the event that the successor-judge is likewise disqualified, the order
of the Intermediate Appellate Court directing the Executive Judge of the Regional
Trial Court of Cebu to re-raffle the case shall be implemented:

(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking to restrain
Judge Francisco P. Burgos from further acting in G.R. No. 63818 is MOOT and
ACADEMIC:

(5) In G.R, No, 62895, the trial court is hereby ordered to speedily terminate the close
Special Proceedings No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the cash and bank deposits by the
petitioner-administrator of the estate as required by this Court in its Resolution dated
June 15, 1983; and

(6) The portion of the Order of August 15, 1969, segregating 40% of the market value
of the estate from which attorney's fees shall be taken and paid should be, as it is
hereby DELETED. The lawyers should collect from the heirs-distributees who
individually hired them, attorney's fees according to the nature of the services
rendered but in amounts which should not exceed more than 20% of the market
value of the property the latter acquired from the estate as beneficiaries.

SO ORDERED.
 [G.R. No. 129008. January 13, 2004]
TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her husband ZALDY
EVANGELISTA, ALBERTO ORFINADA, and ROWENA O. UNGOS, assisted by her
husband BEDA UNGOS, petitioners, vs. COURT OF APPEALS, ESPERANZA P.
ORFINADA, LOURDES P. ORFINADA, ALFONSO ORFINADA, NANCY P. ORFINADA,
ALFONSO JAMES P. ORFINADA, CHRISTOPHER P. ORFINADA and ANGELO P.
ORFINADA, respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of the estate pending the
appointment of an administrator is the issue in this case.
This Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeks to set
aside the Decision[1] of the Court of Appeals in CA-G.R. SP No. 42053 dated January 31, 1997, as
well as its Resolution[2] dated March 26, 1997, denying petitioners motion for reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in Angeles City leaving
several personal and real properties located in Angeles City, Dagupan City and Kalookan
City.[3] He also left a widow, respondent Esperanza P. Orfinada, whom he married on July 11,
1960 and with whom he had seven children who are the herein respondents, namely: Lourdes
P. Orfinada, Alfonso Clyde P. Orfinada, Nancy P. Orfinada-Happenden, Alfonso James P.
Orfinada, Christopher P. Orfinada, Alfonso Mike P. Orfinada (deceased) and Angelo P.
Orfinada.[4]
Apart from the respondents, the demise of the decedent left in mourning his paramour
and their children. They are petitioner Teodora Riofero, who became a part of his life when he
entered into an extra-marital relationship with her during the subsistence of his marriage to
Esperanza sometime in 1965, and co-petitioners Veronica[5], Alberto and Rowena.[6]
On November 14, 1995, respondents Alfonso James and Lourdes Orfinada discovered
that on June 29, 1995, petitioner Teodora Rioferio and her children executed an Extrajudicial
Settlement of Estate of a Deceased Person with Quitclaim involving the properties of the estate
of the decedent located in Dagupan City and that accordingly, the Registry of Deeds in
Dagupan issued Certificates of Titles Nos. 63983, 63984 and 63985 in favor of petitioners
Teodora Rioferio, Veronica Orfinada-Evangelista, Alberto Orfinada and Rowena Orfinada-
Ungos. Respondents also found out that petitioners were able to obtain a loan of P700,000.00
from the Rural Bank of Mangaldan Inc. by executing a Real Estate Mortgage over the
properties subject of the extra-judicial settlement.[7]
On December 1, 1995, respondent Alfonso Clyde P. Orfinada III filed a Petition for Letters
of Administration docketed as S.P. Case No. 5118 before the Regional Trial Court of Angeles
City, praying that letters of administration encompassing the estate of Alfonso P. Orfinada, Jr.
be issued to him.[8]
On December 4, 1995, respondents filed a Complaint for the Annulment/Rescission of
Extra Judicial Settlement of Estate of a Deceased Person with Quitclaim, Real Estate Mortgage
and Cancellation of Transfer Certificate of Titles with Nos. 63983, 63985 and 63984 and Other
Related Documents with Damages against petitioners, the Rural Bank of Mangaldan, Inc. and
the Register of Deeds of Dagupan City before the Regional Trial Court, Branch 42, Dagupan
City.[9]
On February 5, 1996, petitioners filed their Answer to the aforesaid complaint interposing
the defense that the property subject of the contested deed of extra-judicial settlement
pertained to the properties originally belonging to the parents of Teodora Riofero [10] and that
the titles thereof were delivered to her as an advance inheritance but the decedent had
managed to register them in his name.[11] Petitioners also raised the affirmative defense that
respondents are not the real parties-in-interest but rather the Estate of Alfonso O. Orfinada, Jr.
in view of the pendency of the administration proceedings.[12] On April 29, 1996, petitioners
filed a Motion to Set Affirmative Defenses for Hearing[13] on the aforesaid ground.
The lower court denied the motion in its Order[14] dated June 27, 1996, on the ground
that respondents, as heirs, are the real parties-in-interest especially in the absence of an
administrator who is yet to be appointed in S.P. Case No. 5118. Petitioners moved for its
reconsideration[15] but the motion was likewise denied.[16]
This prompted petitioners to file before the Court of Appeals their Petition for
Certiorari under Rule 65 of the Rules of Court docketed as CA G.R. S.P. No.
42053.[17] Petitioners averred that the RTC committed grave abuse of discretion in issuing the
assailed order which denied the dismissal of the case on the ground that the proper party to
file the complaint for the annulment of the extrajudicial settlement of the estate of the
deceased is the estate of the decedent and not the respondents.[18]
The Court of Appeals rendered the assailed Decision[19] dated January 31, 1997, stating
that it discerned no grave abuse of discretion amounting to lack or excess of jurisdiction by the
public respondent judge when he denied petitioners motion to set affirmative defenses for
hearing in view of its discretionary nature.
A Motion for Reconsideration was filed by petitioners but it was denied.[20] Hence, the
petition before this Court.
The issue presented by the petitioners before this Court is whether the heirs have legal
standing to prosecute the rights belonging to the deceased subsequent to the commencement
of the administration proceedings.[21]
Petitioners vehemently fault the lower court for denying their motion to set the case for
preliminary hearing on their affirmative defense that the proper party to bring the action is the
estate of the decedent and not the respondents. It must be stressed that the holding of a
preliminary hearing on an affirmative defense lies in the discretion of the court. This is clear
from the Rules of Court, thus:
SEC. 5. Pleadings grounds as affirmative defenses.- Any of the grounds for dismissal provided
for in this rule, except improper venue, may be pleaded as an affirmative defense, and a
preliminary hearing may be had thereon as if a motion to dismiss had been filed.[22] (Emphasis
supplied.)
Certainly, the incorporation of the word may in the provision is clearly indicative of the
optional character of the preliminary hearing. The word denotes discretion and cannot be
construed as having a mandatory effect.[23] Subsequently, the electivity of the proceeding was
firmed up beyond cavil by the 1997 Rules of Civil Procedure with the inclusion of the phrase in
the discretion of the Court, apart from the retention of the word may in Section 6, [24] in Rule 16
thereof.
Just as no blame of abuse of discretion can be laid on the lower courts doorstep for not
hearing petitioners affirmative defense, it cannot likewise be faulted for recognizing the legal
standing of the respondents as heirs to bring the suit.
defendant.[32] Evidently, the necessity for the heirs to seek judicial relief to recover property of
the estate is as compelling when there is no appointed administrator, if not more, as where
there is an appointed administrator but he is either disinclined to bring suit or is one of the
guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to sue for the recovery
of property of the estate during the pendency of administration proceedings has three
exceptions, the third being when there is no appointed administrator such as in this case.
As the appellate court did not commit an error of law in upholding the order of the lower
court, recourse to this Court is not warranted.
WHEREFORE, the petition for review is DENIED. The assailed decision and resolution of
the Court of Appeals are hereby AFFIRMED. No costs.
SO ORDERED.

Pending the filing of administration proceedings, the heirs without doubt have legal
personality to bring suit in behalf of the estate of the decedent in accordance with the
provision of Article 777 of the New Civil Code that (t)he rights to succession are transmitted
from the moment of the death of the decedent. The provision in turn is the foundation of the
principle that the property, rights and obligations to the extent and value of the inheritance of
a person are transmitted through his death to another or others by his will or by operation of
law.[25]
Even if administration proceedings have already been commenced, the heirs may still
bring the suit if an administrator has not yet been appointed. This is the proper modality
despite the total lack of advertence to the heirs in the rules on party representation, namely
Section 3, Rule 3[26] and Section 2, Rule 87[27] of the Rules of Court. In fact, in the case
of Gochan v. Young,[28] this Court recognized the legal standing of the heirs to represent the
rights and properties of the decedent under administration pending the appointment of an
administrator. Thus:

The above-quoted rules,[29] while permitting an executor or administrator to represent or to

bring suits on behalf of the deceased, do not prohibit the heirs from representing the
deceased. These rules are easily applicable to cases in which an administrator has already
been appointed. But no rule categorically addresses the situation in which special
proceedings for the settlement of an estate have already been instituted, yet no
administrator has been appointed. In such instances, the heirs cannot be expected to wait for
the appointment of an administrator; then wait further to see if the administrator appointed
would care enough to file a suit to protect the rights and the interests of the deceased; and in
the meantime do nothing while the rights and the properties of the decedent are violated or
dissipated.

Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz:

(1) if the executor or administrator is unwilling or refuses to bring suit; [30] and (2) when the
administrator is alleged to have participated in the act complained of[31] and he is made a party