[G.R. No. 155555. August 16, 2005] ISABEL P. PORTUGAL and JOSE DOUGLAS PORTUGAL JR., petitioners, vs.

LEONILA PORTUGAL-BELTRAN, respondent. DECISION CARPIO MORALES, J.: Petitioners Isabel P. Portugal and her son, Jose Douglas Portugal Jr., assail the September 24, 2002[1] Decision of the Court of Appeals affirming that of the Regional Trial Court (RTC) of Caloocan City, Branch 124[2] which dismissed, after trial, their complaint for annulment of title for failure to state a cause of action and lack of jurisdiction. From the records of the case are gathered the following material allegations claims of the parties which they sought to prove by testimonial and documentary evidence during the trial of the case: On November 25, 1942, Jose Q. Portugal (Portugal) married Paz Lazo.[3] On May 22, 1948, Portugal married petitioner Isabel de la Puerta.[4] On September 13, 1949, petitioner Isabel gave birth to a boy whom she named Jose Douglas Portugal Jr., her herein co-petitioner.[5] On April 11, 1950, Paz gave birth to a girl, Aleli,[6] later baptized as Leonila Perpetua Aleli Portugal, herein respondent.[7] On May 16, 1968, Portugal and his four (4) siblings executed a Deed of Extra-Judicial Partition and Waiver of Rights[8] over the estate of their father, Mariano Portugal, who died intestate on November 2, 1964.[9] In the deed, Portugals siblings waived their rights, interests, and participation over a 155 sq. m. parcel of land located in Caloocan in his favor.[10] On January 2, 1970, the Registry of Deeds for Caloocan City issued Transfer Certificate of Title (TCT) No. 34292 covering the Caloocan parcel of land in the name of Jose Q. Portugal, married to Paz C. Lazo.[11] On February 18, 1984, Paz died.

On April 21, 1985, Portugal died intestate. On February 15, 1988, respondent executed an Affidavit of Adjudication by Sole Heir of Estate of Deceased Person[12] adjudicating to herself the Caloocan parcel of land. TCT No. 34292/T-172[13] in Portugals name was subsequently cancelled and in its stead TCT No. 159813[14] was issued by the Registry of Deeds for Caloocan City on March 9, 1988 in the name of respondent, Leonila Portugal Beltran, married to Merardo M. Beltran, Jr. Later getting wind of the death in 1985 of Portugal and still later of the 1988 transfer by respondent of the title to the Caloocan property in her name, petitioners filed before the RTC of Caloocan City on July 23, 1996 a complaint[15] against respondent for annulment of the Affidavit of Adjudication executed by her and the transfer certificate of title issued in her name. In their complaint, petitioners alleged that respondent is not related whatsoever to the deceased Portugal, hence, not entitled to inherit the Caloocan parcel of land and that she perjured herself when she made false representations in her Affidavit of Adjudication. Petitioners accordingly prayed that respondents Affidavit of Adjudication and the TCT in her name be declared void and that the Registry of Deeds for Caloocan be ordered to cancel the TCT in respondents name and to issue in its stead a new one in their (petitioners) name, and that actual, moral and exemplary damages and attorneys fees and litigation expenses be awarded to them. Following respondents filing of her answer, the trial court issued a Pre -Trial Order chronicling, among other things, the issues as follows: a. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal Sr., is valid? b. Which of the plaintiff . . . Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the deceased Jose Q. Portugal Sr.? c. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintiffs. d. Whether or not plaintiffs are entitled to their claims under the complaint.[16] (Underscoring supplied)
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After trial, the trial court, by Decision of January 18, 2001,[17] after giving an account of the testimonies of the parties and their witnesses and of their documentary evidence, without resolving the issues defined during pre-trial, dismissed the case for lack of cause of action on the ground that petitioners status and right as putative heirs had not been established before a probate ( sic) court, and lack of jurisdiction over the case, citing Heirs of Guido and Isabel Yaptinchay v. Del Rosario.[18] In relying on Heirs of Guido and Isabel Yaptinchay, the trial court held: The Heirs of Yaptinchay case arose from facts not dissimilar to the case at bar. xxx In the instant case, plaintiffs presented a Marriage Contract, a Certificate of Live Birth, pictures (sic) and testimonial evidence to establish their right as heirs of the decedent. Thus, the preliminary act of having a status and right to the estate of the decedent, was sought to be determined herein. However, the establishment of a status, a right, or a particular fact is remedied through a special proceeding (Sec. 3(c), Rule 1, 1997 Rules of Court), not an ordinary civil action whereby a party sues another for the enforcement or protection of a right, or the protection or redress of a wrong (ibid, a). The operative term in the former is to establish, while in the latter, it is to enforce, a right. Their status and right as putative heirs of the decedent not having been established, as yet, the Complaint failed to state a cause of action. The court, not being a probate (sic) court, is without jurisdiction to rule on plaintiffs cause to establish their status and right herein . Plaintiffs do not have the personality to sue (Secs. 1 and 2, Rule 3, in relation to Secs. 1 and 2, Rule 2, supra).[19] (Italics in the original; emphasis and underscoring supplied). Petitioners thereupon appealed to the Court of Appeals, questioning the trial courts ratio decedendi in dismissing the case as diametrically opposed to this Courts following ruling in Cario v. Cario,[20] viz: Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous void. (Domingo v.

Court of Appeals, 226 SCRA 572, 579 [1993]) However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. (Nial, et al. v. Bayadog, GR No. 13378, March 14, 2000). In such cases, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. (Domingo v. Court of Appeals, supra) (Emphasis and underscoring supplied). Conceding that the ruling in Cario was promulgated (in 2001) subsequent to that of Heirs of Guido and Isabel Yaptinchay (in 1999), the appellate court found Cario to be inapplicable, however, to the case in this wise: To be borne in mind is the fact that the main issue in the Cario case was the validity of the two marriages contracted by the deceased SPO4 Santiago Cario, whose death benefits was the bone of contention between the two women both named Susan (viz., Susan Nicdao Cario and Susan Yee Cario) both of whom he married. It is not disputed in said case that SPO4 S. Cario contracted two marriages with said two women during his lifetime, and the only question was: which of these two marriages was validly celebrated? The award of the death benefits of the deceased Cario was thus, merely an incident to the question of which of the two marriages was valid. Upon the other hand, the case at bench is of a different milieu. The main issue here is the annulment of title to property. The only undisputed fact in this case is that the deceased Jose Portugal, during his lifetime, owned a parcel of land covered by Transfer Certificate of Title (TCT) No. T34292. However, here come two contending parties, herein plaintiffs-appellants and defendant-appellee, both now insisting to be the legal heir(s) of the decedent. x x x. The status and rights of the parties herein have not, therefore, been definitively established, as yet. x x x. Necessarily and naturally, such questions as to such status or right must be properly ventilated in an appropriate special proceeding, not in an ordinary civil action, whereunder a party sues another for the enforcement or protection of a right, or the protection or redress of a wrong. The institution of an ordinary civil suit for that purpose in the present case is thus impermissible. For it is axiomatic that what the law prohibits or forbids directly, it cannot permit or allow indirectly. To permit, or allow, a declaration of heirship, or the establishment of the legitimacy or illegitimacy of a child to be determined in an ordinary civil action, not in an appropriate special proceeding brought for that
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purpose, is thus to impinge upon this axiom. x x x[21] (Emphasis in the original, underscoring supplied). The appellate court, by Decision of September 24, 2002,[22] thus affirmed the trial courts dismissal of the case. Hence, the present Petition for Review on Certiorari,[23] faulting the appellate court to have erred when I. . . . it affirmed the RTC decision dismissing the initiatory complaint as it failed to state a cause of action. II. . . . (i) it applied the ruling in Heirs of Guido [and Isabel] Yaptingchay despite the existence of a later and contrary ruling in Cario, and (ii) when the Honorable CA and the lower court failed to render judgment based on the evidence presented relative to the issues raised during pre-trial, . . .[24] (Emphasis and underscoring supplied). Petitioners thus prayed as follows: WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that the questioned CA decision be reversed, and a new one entered in accordance with the prayers set forth in the instant complaint based on the above disquisition and evidence adduced by petitioners in the court a quo. IN THE ALTERNATIVE, should the Honorable Supreme Court find that the pronouncements in Cario apply, a decision be entered remanding to the court a quo the determination of the issues of which of the two marriages is valid, and the determination of heirship and legitimacy of Jose Jr. and Leonila preparatory to the determination of the annulment of title issued in the name of Leonila. Other relief and remedy just and equitable in the premises are likewise prayed for.[25] (Underscoring supplied). Petitioners, in the main, argue that the appellate court misapplied Heirs of Guido and Isabel Yaptinchay and in effect encouraged multiplicity of suits which is

discouraged by this Court as a reading of Cario shows; that Cario allows courts to pass on the determination of heirship and the legitimacy or illegitimacy of a child so long as it is necessary to the determination of the case; and that contrary to the appellate courts ruling, they had established their status as compulsory heirs. In the main, the issue in the present petition is whether petitioners have to institute a special proceeding to determine their status as heirs before they can pursue the case for annulment of respondents Affidavit of Adjudication and of the TCT issued in her name. In the above-cited case of Heirs of Guido and Isabel Yaptinchay,[26] the therein petitioners executed on March 17, 1994 an extrajudicial settlement of the estate of the deceased Guido and Isabel Yaptinchay, owners -claimants of the two lots mentioned therein. They later discovered on August 26, 1994 that a portion, if not all, of the two lots had been titled in the name of the therein respondent Golden Bay Realty and Development Corporation which in turn sold portions thereof to the therein individual respondents. The therein petitioners Heirs thus filed a complaint for annulment of titles. The therein respondents moved to dismiss the case for failure of the therein petitioners to, inter alia, state a cause of action and prove their status as heirs. The trial court granted the motion to dismiss in this wise: But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have not shown any proof or even a semblance of it except the allegations that they are the legal heirs of the aforementioned Yaptinchaysthat they have been declared the legal heirs of the deceased couple. Now, the determination of who are the legal heirs of the deceased couple must be made in the proper special proceedings in court, and not in an ordinary suit for reconveyance of property. This must take precedence over the action for reconveyance . . .[27] (Italics in the original; underscoring supplied). On petition for certiorari by the Heirs, this Court, albeit holding that the petition was an improper recourse, found that the trial court did not commit grave abuse of discretion in dismissing the case. Citing Litam et al. v. Rivera[28] and Solivio v. Court of Appeals,[29] this Court held that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right. In the above-cited case of Litam,[30] Gregorio Dy Tam instituted a special proceeding for issuance of letters of administration before the then Court of First Instance (CFI) of Rizal, alleging in his petition that he is the son of Rafael Litam who died in Manila on January 10, 1951 and is survived by him and his therein named
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seven (7) siblings who are children of the decedent by his marriage to Sia Khin celebrated in China in 1911; that the decedent contracted in 1922 in the Philippines another marriage with Marcosa Rivera; and that the decedent left neither a will nor debt. Dy Tam thus prayed for the issuance of letters of administration to Marcosa Rivera, the surviving spouse of the decedent. The CFI granted the petition and issued letters of administration to, on Marcosas request, her nephew Arminio Rivera. While the special proceeding was pending, Dy Tam and his purported siblings filed a civil case before the same court, against the estate of Rafael Litam administrator Arminio Rivera and Remedios R. Espiritu, duly appointed guardian of Marcosa. In their complaint, Dy Tam and his purported siblings substantially reproduced the allegations made in his petition in the special proceeding, with the addition of a list of properties allegedly acquired during the marriage of the decedent and Marcosa. Finding the issue raised in the civil case to be identical to some unresolved incidents in the special proceeding, both were jointly heard by the trial court, following which it rendered a decision in the civil case dismissing it, declaring, inter alia, that the plaintiffs Dy Tam et al. are not the children of the decedent whose only surviving heir is Marcosa. On appeal to this Court by Dy Tam et al., one of the two issues raised for determination was whether they are the legitimate children of Rafael Litam. This Court, holding that the issue hinged on whether Rafael Litam and Sia Khin were married in 1911, and whether Rafael Litam is the father of appellants Dy Tam et al., found substantially correct the trial courts findings of fact and its conclusion that, among other things, the birth certificates of Dy Tam et al. do not establish the identity of the deceased Rafael Litam and the persons named therein as father [and] it does not appear in the said certificates of birth that Rafael Litam had in any manner intervened in the preparation and filing thereof; and that [t]he other documentary evidence presented by [them] [is] entirely immaterial and highly insufficient to prove the alleged marriage between the deceased Rafael Litam and Sia Khin and [their] alleged status . . . as children of said decedent. This Court went on to opine in Litam, however, that the lower court should not have declared, in the decision appealed from, that Marcosa is the only heir of the decedent, for such declaration is improper in the [civil case], it being within the exclusive competence of the court in [the] [s]pecial [p]roceeding.

In Solivio,[31] also cited in Heirs of Guido and Isabel Yaptinchay, there was a special proceeding for the settlement of the estate of the deceased, who was a soltero, filed before the RTC of Iloilo. In the special proceeding, Branch 23 of said court declared as sole heir Celedonia Solivio, the decedents maternal aunt -half sister of his mother. Concordia Javellana-Villanueva, the decedents paternal aunt-sister of his father, moved to reconsider the courts order declaring Celedonia Solivio as sole heir of the decedent, she claiming that she too was an heir. The court denied the motion on the ground of tardiness. Instead of appealing the denial of her motion, Concordia filed a civil case against Celedonia before the same RTC, for partition, recovery of possession, ownership and damages. The civil case was raffled to Branch 26 of the RTC, which rendered judgment in favor of Concordia. On appeal by Celedonia, the appellate court affirmed the said judgment. On petition for review filed before this Court by Celedonia who posed, among other issues, whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain [the civil action] for partition and recovery of Concordia Villanuevas share of the estate of [the deceased] while the [estate] proceedings . . . were still pending . . . in Branch 23 of the same court, this Court held that [i]n the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedents estate, a court should not interfere with [estate] proceedings pending in a co-equal court, citing Guilas v. CFI Judge of Pampanga.[32] This Court, however, in Solivio, upon [c]onsidering that the estate proceedings are still pending, but nonetheless [therein private respondent-Concordia Villanueva] had lost her right to have herself declared as co-heir in said proceedings, opted to proceed to discuss the merits of her claim in the interest of justice, and declared her an heir of the decedent. In Guilas[33] cited in Solivio, a project of partition between an adopted daughter, the therein petitioner Juanita Lopez Guilas (Juanita), and her adoptive father was approved in the proceedings for the settlement of the testate estate of the decedent-adoptive mother, following which the probate court directed that the records of the case be archived. Juanita subsequently filed a civil action against her adoptive father to annul the project of partition on the ground of lesion, preterition and fraud, and prayed that her adoptive father immediately deliver to her the two lots allocated to her in the project of partition. She subsequently filed a motion in the testate estate proceedings for her adoptive father to deliver to her, among other things, the same two lots allotted to her.
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After conducting pre-trial in the civil case, the trial court, noting the parties agreement to suspend action or resolution on Juanitas motion in the testate estate proceedings for the delivery to her of the two lots alloted to her until after her complaint in the civil case had been decided, set said case for trial. Juanita later filed in the civil case a motion to set aside the order setting it for trial on the ground that in the amended complaint she, in the meantime, filed, she acknowledged the partial legality and validity of the project of partition insofar as she was allotted the two lots, the delivery of which she was seeking. She thus posited in her motion to set aside the April 27, 1966 order setting the civil case for hearing that there was no longer a prejudicial question to her motion in the testate estate proceedings for the delivery to her of the actual possession of the two lots. The trial court, by order of April 27, 1966, denied the motion. Juanita thereupon assailed the April 27, 1966 order before this Court. The probate courts approval of the project of partition and directive that the records of the case be sent to the archives notwithstanding, this Court held that the testate estate proceedings had not been legally terminated as Juanitas share under the project of partition had not been delivered to her. Explained this Court: As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated (Siguiong vs. Tecson, supra.); because a judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period therefor has not elapse (Mari vs. Bonilla, 83 Phil., 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for re-opening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate o[r] intestate court already final and executed and re-shuffle properties long ago distributed and disposed of (Ramos vs. Ortuzar, 89 Phil. 730, 741-742; Timbol vs. Cano, supra,; Jingco vs. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic vs. Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460461).[34] (Emphasis and underscoring supplied). This Court thus set aside the assailed April 27, 1966 order of the trial court setting the civil case for hearing, but allowed the civil case to continue because it involves no longer the two lots adjudicated to Juanita.

The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or parties to the special proceedings for its settlement is that if the special proceedings are pending, or if there are no special proceedings filed but there is, under the circumstances of the case, a need to file one, then the determination of, among other issues, heirship should be raised and settled in said special proceedings. Where special proceedings had been instituted but had been finally closed and terminated, however, or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased. In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugals estate, executed on February 15, 1988[35] the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section 1 of the Revised Rules of Court.[36] Said rule is an exception to the general rule that when a person dies leaving a property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein.[37] Petitioners claim, however, to be the exclusive heirs of Portugal. A probate or intestate court, no doubt, has jurisdiction to declare who are the heirs of a deceased. It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land,[38] to still subject it, under the circumstances of the case, to a special proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an administration proceeding. And it is superfluous in light of the fact that the parties to the civil case subject of the present case, could and had already in fact presented evidence before the trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial. In fine, under the circumstances of the present case, there being no compelling reason to still subject Portugals estate to administration proceedings since a determination of petitioners status as heirs could be achieved in the civil case filed by petitioners,[39] the trial court should proceed to evaluate the evidence
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presented by the parties during the trial and render a decision thereon upon the issues it defined during pre-trial, which bear repeating, to wit: 1. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal, is valid; 2. Which of the plaintiff, Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the deceased Jose Q. Portugal (Sr.); 3. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintiffs; 4. Whether or not plaintiffs are entitled to their claim under the complaint.[40]

WHEREFORE, the petition is hereby GRANTED. The assailed September 24, 2002 Decision of the Court of Appeals is hereby SET ASIDE. Let the records of the case be REMANDED to the trial court, Branch 124 of the Regional Trial Court of Caloocan City, for it to evaluate the evidence presented by the parties and render a decision on the above-enumerated issues defined during the pre-trial. No costs. SO ORDERED. Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

G.R. No. L-18148

February 28, 1963

DEOGRACIAS BERNARDO, executor of the testate estate of the deceased EUSEBIO CAPILI; and the instituted heirs, namely: ARMANDO CAPILI and ARTURO BERNARDO, ET AL., petitioners, vs. HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA REYES, namely: FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., respondents. Ambrosio Padilla Law Offices for petitioners. Romerico F. Flores for respondents. BARRERA, J.: This is a petition by certiorari for the review of the decision of the Court of Appeals affirming that of the Court of First Instance of Bulacan holding that the probate court in Special Proceeding 1101 had jurisdiction to determine the validity of the deed of donation in question and to pass upon the question of title or ownership of the properties mentioned therein. The facts are briefly stated in the appealed decision of the Court of Appeals as follows: Eusebio Capili and Hermogena Reyes were husband and wife. The first died on July 27, 1958 and a testate proceeding for the settlement of his estate was instituted in the Court of the Fist Instance of Bulacan. His will was admitted to probate on October 9, 1958, disposing of his properties in favor of his widow; his cousins Armando, Ursula, and Buenaventura, all surnamed Capili; and Arturo, Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes herself died on April 24, 1959. Upon petition of Deogracias Bernardo, executor of the estate of the deceased Eusebio Capili, she was substituted by her collateral relatives and intestate heirs, namely, Marcos, Vicente, Francisco and Dominga, all surnamed Reyes; and Jose, Constancia, Raymunda and Elena, all surnamed Isidoro. On June 12, 1959, the executor filed a project of partition in the testate proceeding in accordance with the terms of the will, adjudicating the estate of Eusebio Capili among the testamentary heirs with the exception of Hermogena Reyes, whose share was alloted to her collateral relatives aforementioned. On June 16, 1959 these relatives filed an opposition to the executor's project of partition and submitted a counter-project of

partition of their own, claiming 1/2 of the properties mentioned in the will of the deceased Eusebio Capili on the theory that they belonged not to the latter alone but to the conjugal partnership of the spouses. The probate court, in two orders dated June 24, 1959 and February 10, 1960, respectively, set the two projects of partition for hearing, at which evidence was presented by the parties, followed by the submission of memoranda discussing certain legal issues. In the memorandum for the executor and the instituted heirs it was contended: (1) that the properties disposed of in the will of the deceased Eusebio Capili belonged to him exclusively and not to the conjugal partnership, because Hermogena Reyes had donated to him her half share of such partnership; (2) that the collateral heirs of Hermogena Reyes had no lawful standing or grounds to question the validity of the donation; and (3) that even assuming that they could question the validity of the donation, the same must be litigated not in the testate proceeding but in a separate civil action. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1wph1.t The oppositors and heirs of Hermogena Reyes, on their part, argued that the deed of donation itself was determinative of the original conjugal character to the properties, aside from the legal presumption laid down in Article 160 of the Civil Code, and that since the donation was null and void the deceased Eusebio Capili did not become owner of the share of his wife and therefore could not validly dispose of it in his will. On September 14, 1960, the probate court, the Honorable M. Mejia presiding, issued an order declaring the donation void without making any specific finding as to its juridical nature, that is, whether it was inter vivos or mortis causa, for the reason that, considered under the first category, it falls under Article 133 of the Civil Code, which prohibits donations between spouses during the marriage; and considered under the second category, it does not comply with the formalities of a will as required by Article 728 in relation to Article 805 of the same Code, there being no attestation clause. In the same order the court disapproved both projects of partition and directed the executor to file another," dividing the property mentioned in the last will and testament of the deceased Eusebio Capili and the properties mentioned in the deed of donation, Exhibit B,
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between the instituted heirs of the deceased Eusebio Capili and the legal heirs of the deceased Hermogena Reyes, upon the basis that the said properties were conjugal properties of the deceased spouses." On September 27, 1960, the executor filed a motion for new trial, reiterating and emphasizing the contention previously raised in their memorandum that the probate court had no jurisdiction to take cognizance of the claim of the legal heirs of Hermogena Reyes involving title to the properties mentioned in the will of Eusebio Capili and taking exception to the court's declaration of the nullity of the donation "without stating facts or provision of law on which it was based." The motion for new trial was denied in an order dated October 3, 1960. On appeal to the Court of Appeals the order appealed from being affirmed, petitioners filed this present petition for review by certiorari. The petitioners-appellants contend that the appellate court erred in not declaring that the probate court, having limited and special jurisdiction, had generally no power to adjudicate title and erred in applying the exception to the rule. In a line of decisions, this Court consistently held that as a general rule, question as 1 to title to property cannot be passed upon on testate or intestate proceedings," except where one of the parties prays merely for the inclusion or exclusion from the inventory of the property, in which case the probate court may pass provisionally 2 upon the question without prejudice to its final determination in a separate action. However, we have also held that when the parties interested are all heirs of the deceased, it is optional to them to submit to the probate court a question as to title to property, and when so submitted, said probate court may definitely pass judgment thereon (Pascual v. Pascual, 73 Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the consent of the parties, matters affecting property under judicial administration may be taken cognizance of by the court in the course of intestate proceeding, provided interests of third persons are not prejudiced (Cunanan v. Amparo, 80 Phil. 229, 232). In the light of this doctrine, may it be said correctly that the trial court as well as the Court of Appeals erred in upholding the power of the probate court in this case to adjudicate in the testate proceedings, the question as to whether the properties herein involved belong to the conjugal partnership of Eusebio Capili and Hermogena Reyes, or to the deceased husband exclusively? At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in the sense advanced by appellants that the trial court had completely

no authority to pass upon the title to the lands in dispute, and that its decision on the subject is null and void and does not bind even those who had invoked its authority and submitted to its decision because, it is contended, jurisdiction is a creature of law and parties to an action can not vest, extend or broaden it. If appellants' contention is correct, then there can be no exception to the nojurisdiction theory. But as has been stated in the case of Cunanan v. Amparo (supra) the Supreme Court speaking through Mr. Justice Pedro Tuason: "Determination of title to property is within the jurisdiction of Courts of First Instance. The responding Soriano's objection (that the probate court lacked jurisdiction to order the delivery of the possession of the lots to the estate) relates exclusively to the procedure, which is distinct from jurisdiction. It affects only personal rights to a mode of practice (the filing of an independent ordinary action) which may be waived". Strictly speaking, it is more a question of jurisdiction over the person, not over the subject matter, for the jurisdiction to try controversies between heirs of a deceased person regarding the ownership of properties alleged to belong to his estate, has been recognized to be vested in probate courts. This is so because the purpose of an administration proceeding is the liquidation of the estate and distribution of the residue among the heirs and legatees. Liquidation means determination of all the 3 assets of the estate and payment of all the debts and expenses. Thereafter, distribution is made of the decedent's liquidated estate among the persons entitled to succeed him. The proceeding is in the nature of an action of partition, in which each party is required to bring into the mass whatever community property he has in his possession. To this end, and as a necessary corollary, the interested parties may introduce proofs relative to the ownership of the properties in dispute. All the heirs who take part in the distribution of the decedent's estate are before the court, and subject to the jurisdiction thereof, in all matters and incidents necessary to the complete settlement of such estate, so long as no interests of third parties are 4 affected. In the case now before us, the matter in controversy is the question of ownership of certain of the properties involved whether they belong to the conjugal partnership or to the husband exclusively. This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among his heirs who are all parties to the proceedings, including, of course, the widow, now represented because of her death, by her heirs who have been substituted upon petition of the executor himself and who have appeared voluntarily. There are no third parties whose rights may be affected. It is true that the heirs of the deceased widow are not heirs of the testator-husband, but the widow is, in addition to her own right to the conjugal property. And it is this right that is being sought to be enforced by her substitutes. Therefore, the claim that is being asserted is one belonging to an heir to the testator and, consequently, it
8

complies with the requirement of the exception that the parties interested (the petitioners and the widow, represented by dents) are all heirs claiming title under the testator. Petitioners contend additionally that they have never submitted themselves to the jurisdiction of the probate court, for the purpose of the determination of the question of ownership of the disputed properties. This is not borne by the admitted facts. On the contrary, it is undisputed that they were the ones who presented the project of partition claiming the questioned properties as part of the testator's asset. The respondents, as representatives or substitutes of the deceased widow opposed the project of partition and submitted another. As the Court of Appeals said, "In doing so all of them must be deemed to have submitted the issue for resolution in the same proceeding. Certainly, the petitioners can not be heard to insist, as they do, on the approval of their project of partition and, thus, have the court take it for granted that their theory as to the character of the properties is correct, entirely without regard to the opposition of the respondents". In other words, by presenting their project of partition including therein the disputed lands (upon the claim that they were donated by the wife to her husband), petitioners themselves put in issue the question of ownership of the properties which is well within the competence of the probate court and just because of an opposition thereto, they can not thereafter withdraw either their appearance or the issue from the jurisdiction of the court. Certainly, there is here a waiver where the parties who 5 raise the objection are the ones who set the court in motion. They can not be permitted to complain if the court, after due hearing, adjudges question against 6 them. Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of the properties involved because the widow herself, during her lifetime, not only did not object to the inclusion of these properties in the inventory of the assets of her deceased husband, but also signed an extra-judicial partition of those inventoried properties. But the very authorities cited by appellants require that to constitute estoppel, the actor must have knowledge of the facts and be appraised of his rights at the time he performs the act constituting 7 estoppel, because silence without knowledge works no estoppel. In the present case, the deceased widow acted as she did because of the deed of donation she executed in favor of her husband not knowing that such deed was illegal, if intervivos, and ineffectual if mortis-causa, as it has not been executed with the required formalities similar to a will. WHEREFORE, the decision of the Court of Appeals being in accordance with law, the same is hereby affirmed with costs against appellants. So ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon and Regala, JJ., concur. Makalintal, J., took no part.

CLAIMS FOR OR AGAINST CONJUGAL PARTNERSHIP G.R. No. L-44602 November 28, 1938

MARIA CALMA, as administratrix of the testamentary proceedings of Fausta Macasaquit, plaintiff-appellant, vs. ESPERANZA TAEDO, assisted by her husband Felipe Mamaual, and BARTOLOME QUIZON, Deputy Sheriff of Tarlac, defendants-appellees.

SEC. 685. When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof shall be paid, in the testamentary or intestate proceedings of the deceased spouse, in accordance with the provisions of this Code relative to the administration and liquidation and partition proceeding, unless the parties, being all of age and legally capacitated, avail themselves of the right granted to them by this Code of proceeding to an extrajudicial partition and liquidation of said property. In case it is necessary to sell any portion of said community property in order to pay the outstanding debts and obligations of the same, such sale shall be made in the manner and with the formalities established by this Code for the sale of the property of deceased persons. Any sale, transfer, alienation or disposition of said property effected without said formalities shall be null and void, except as regards the portion that belonged to the vendor at the time the liquidation and partition was made. Prior to this Act, the liquidation of conjugal property was made under section 685 of the Code of Civil Procedure. Interpreting the scope of Act No. 3176, this court, in the case of Caragay vs. Urquiza (53 Phil., 72), said that the amendment introduced by this Act consists in authorizing the institution of testate or intestate proceedings for the settlement of the estate of a deceased spouse or of an ordinary action for the liquidation and partition of the property of a conjugal partnership. It should be understood that these remedies are alternative, and not cumulative, in he sense that they cannot be availed of at he same time, inasmuch as an anomalous and chaotic situation would result if conjugal property were administered, liquidated and distributed at the same time in a testamentary proceeding and in an ordinary action for liquidation and partition of property. Consequently, the testamentary proceedings of Fausta Macasaquit having been instituted, the liquidation and partition of the conjugal property by reason of her marriage to Eulalio Calma should be made in these proceedings, to the exclusion of any other proceeding for the same purpose. Interpreting this same Act No. 3176 in another decision, this court, in the case of Cruz vs. De Jesus (52 Phil., 870) said that when the marriage is dissolved by the death of the wife, the legal power of management of the husband ceases, passing to the administrator appointed by the court in the testate or intestate proceedings instituted to that end if there be any debts to be paid. This doctrine has been confirmed in the other case of Ona vs. De Gala (58 Phil., 881).

AVANCENA, C.J.: The spouses Eulalio Calma and Fausta Macasaquit were the owners of the property described in the complaint, being their conjugal property. They were also indebted to Esperanza Taedo, chargeable against the conjugal property, in the sums of P948.34 and P247, with interest thereon at 10 per cent per annum. On October 10, 1933, Fausta Macasaquit died leaving a will wherein she appointed her daughter, Maria Calma, as administratrix of her properties. Upon the commencement of the corresponding probate proceedings in the Court of First Instance of Tarlac, the said daughter, Maria Calma, was appointed judicial administratrix of the properties of the deceased. While these probate proceedings of the deceased Fausta Macasaquit were pending, Esperanza Tanedo, on January 27, 1934, filed a complaint against Eulalio Calma for the recovery of the sums of P948.34 and P247. The Court of First Instance of Tarlac rendered judgment for the payment of this sum. In the execution of this judgment, despite the third party claim filed by Fausta Macasaquit, the property described in the complaint was sold by the sheriff. Maria Calma, as administratrix of the estate of Fausta Macasaquit, now brings this action and asks that the sale made by the sheriff of the property described in the complaint be annulled and that the estate of Fausta Macasaquit be declared the sole and absolute owner thereof. lawphi1.net The court absolved the defendants from this complaint. The probate proceedings of the deceased Fausta Macasaquit were instituted in accordance with Act No. 3176 reading:

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From the foregoing it follows that when Esperanza Tanedo brought suit against Eulalio Calma for the payment of the sums of P948.34 and P247, which wee debts chargeable against the conjugal property, the power of Eulalio Calma. legal administrator of the conjugal property while Fausta Macasaquit was living, had ceased and passed to the administratrix Maria Calma appointed in the testamentary proceedings of Fausta Macasaquit. Hence, this being an indebtedness chargeable against conjugal property, no complaint for its payment can be brought against Eulalio Calma, who had already ceased as administrator of the conjugal property; the claim for this amount had to be filed in the testamentary proceedings of Fausta Macasaquit. Having to be filed according to Act No. 3176 under the provisions of the Code of Civil Procedure relative to the administration and liquidation of properties of deceased persons, it should be filed before the committee on claims in said testamentary proceedings and, at all events, thereafter, by appeal to the corresponding Court of First Instance, in an ordinary action against the judicial administratrix. On the other hand, he property described in the complaint is included among the inventoried properties subject to the testamentary proceedings of Fausta Macasaquit because, belonging as it does to the conjugal property, it should, under Act No. 3176, be included among the properties of the testamentary proceedings. We conclude that, Eulalio Calma having ceased as legal administrator of the conjugal property had with his wife Fausta Macasaquit, no complaint can be brought against him for the recovery of an indebtedness chargeable against said conjugal property, and that the action should be instituted in the testamentary proceedings of the deceased Fausta Macasaquit in the manner provided by law, by filing it first with the committee on claims. Wherefore, we hold that the sale of the property described in the complaint, made by the sheriff in execution of the judgment rendered against Eulalio Calma for the collection of the indebtedness chargeable against the conjugal property, is void and said property should be deemed subject to the testamentary proceedings of the deceased Fausta Macasaquit for all the purposes of that case. The appealed judgment is reversed, without special pronouncement as to the costs. So ordered. Villa-Real, Abad Santos, Imperial, Diaz, Laurel and Concepcion, JJ., concur.
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G.R. No. L-2263

May 30, 1951

PAZ Y. OCAMPO, JOSEFA Y. OCAMPO, ISIDRO Y. OCAMPO, GIL Y. OCAMPO, MAURO Y. OCAMPO, and VICENTE Y. OCAMPO, plaintiffs-appellees, vs. CONRADO POTENCIANO, VICTOR POTENCIANO and LOURDES POTENCIANO, defendants. VICTOR POTENCIANO and LOURDES POTENCIANO, defendants-appellants. Salvador P. de Tangle for appellants. Amado A. Yatco and Rosendo J. Tansinsin for appellees. REYES, J.: This is an appeal by certiorari form a decision of the Court of Appeals. From the findings of fact of said court, which are conclusive for the purposes of this appeal, it appears that on February 3, 1930, Edilberto Ocampo, married to Paz Yatco, executed a deed purporting to convey to his relative, Conrado Potenciano, and the latter's wife, Rufina Reyes, by way of sale with pacto de retro for the sum of P2,5000, a town a lot with a house as strong materials standing thereon. On that same day, Ocampo signed another document, making it appear that, for an annual rental of P300, which, as may be noted, is equivalent to 12 per cent of the purchase price, the vendees were leasing to him the house and lot for the duration of the redemption period. The property involved in the above transaction is located at the center of the poblacion of Bian, Laguna, and in the opinion of the Court of Appeals, worth between 20 and 25 pesos. Though registered in the name of Ocampo alone, it in reality belonged to him and his wife as conjugal property. The period originally fixed for the repurchase was one year, "extendible to another year," but several extensions were granted, with the vendor paying part of the principal in addition to interests. The last extension granted was for year from February 3, 1937, and the period having elapsed without the repurchase having been made, Potenciano, on January 24, 1939, filed with the register of deeds of Laguna an affidavit for the consolidation of title, on the strength which the register of deeds issued transfer certificate of title no. 18056 in the name of Potenciano and his wife. This, however, did not close the avenue for settlement, for on February 28, 1939, with Edilberto Ocampo and Rufina Reyes already dead, Potenciano gave Paz Yatco an option to repurchase the property for P2,500 within 5 years, and a lease

thereon for the same period of time at annual rental of P300 which, as may again be noted, is equivalent to 12 per cent of the purchase price. On or about February 7, 1944, Paz Yatco sought to exercise the option by tendering to Potenciano at his clinic in Manila the sum of P4,000 an amount sufficient to cover both principal and interest, and upon the tender being rejected, deposited the money in court and brought an action in her own name and as judicial administratrix of the estate of her deceased husband to compel Potenciano to accept it and to have the title to the property reinstated in her name and that of her husband. Intervening in the case, Potenciano's children, Victor and Lourdes, filed a crosscomplaint, alleging that the option to purchase granted by their father to plaintiff on February 28, 1939, was null and void as to the share of their deceased mother Rufina Reyes in the property in litigation, which share passed to them by right of inheritance, and that as to their father's share in the same property they, the intervenors, were exercising the right of redemption accorded by law to co-owners of property held in common, for which purpose they had already tendered him the sum of P1,250 on the fifth day after they learned of said option through plaintiff's complaint. To meet these allegations, plaintiff amended her complaint by including the intervenors as defendants and alleging, in effect, that the pacto de retro sale in question was in reality a mortgage to secure a pre-existing debt, with the rental contract thrown in to cover the stipulated interest of 12 per cent; that the option agreement for the repurchase of the property within five years from February 28, 1939, and for the payment of rental for that period in an amount equal to an annual interest of 12 per cent on the loan, was also meant to be in reality an extension of the life of the mortgage; and that the tender of payment was valid, the same having been made within the extended period. The Court of First Instance, after trial, upheld these allegations and gave judgment in favor of the children of Edilberto Ocampo and Paz Yatco, who had substituted the latter after her death. When the case was elevated to the Court of Appeals, that court took a somewhat different view and rendered judgment declaring: (a) That contract Exhibit A entered into between Edilberto Ocampo and Conrado Potenciano was one of mortgage, with interest at the rate of 12 per cent per annum; (b) That the "option to purchase" and the "contract of lease" (Exhibit E and E-1) were validly executed by defendant Conrado Potenciano and binding upon the property in litigation;

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(c) That appellants were not co-owners of said property, by inheritance of one-half of the same from their deceased mother Rufina Reyes; (d) That appellants were not entitled to exercise the right of legal redemption (retracto legal) of the other half of the property belonging to their father Conrado Potenciano; (e) That the late Paz Yatco exercised her option to purchase the property in litigation within the time she had to do so; (f) That the consignation of the P4,000 in Japanese military notes, made with the Clerk of the Court of First Instance of Laguna in payment of the property in question, was in accordance with the law and relieved the heirs of the spouses Ocampo-Yatco from paying anew said purchase price; (g) Ordering defendant Conrado Potenciano to execute the corresponding deed of conveyance, sufficient in law to transfer the title of the property in litigation to the heirs of the deceased spouses Edilberto Ocampo and Paz Yatco; and (h) Ordering the Register of Deeds of Laguna to cancel transfer certificate of title No. 18056 (Exhibit 1) and issue in lieu thereof a new transfer certificate of title for said property in favor of the heirs of the spouses Edilberto Ocampo and Paz Yatco, upon payment by appellees of the corresponding fees and the registration in his office of the deed of conveyance mentioned in the next preceding paragraph. This judgment that is now before us for review. First thing to be noted is that the Court of Appeals found and it is not disputed that the pacto de retro sale made by Edilberto Ocampo in favor of Conrado Potenciano and his wife was in reality a loan with security or an equitable mortgage, with simulated rental for interest. Such being the case, the lenders had no right, through the unilateral declaration of one or both them, to consolidate title in themselves over the property given as security. The consolidation of title effected by Potenciano in this case was, therefore, null and void. The Court of Appeals, however, held that the mortgage contract was superseded, through novation, by the option agreement for the repurchase of the property mortgaged, and the appellants now contend that this war error because Potenciano had no authority to enter into that agreement after the death of his wife. To this

contention we have to agree. The Court of Appeals erred in supposing that the surviving spouse had such authority as de facto administrator of the conjugal estate. As pointed out by appellants, the decisions relied on by that court in support of its view are now obsolete. Those decisions laid down the rule that, upon the dissolution of the marriage by the death of the wife, the husband must liquidate the partnership affairs. But the procedure has been changed by Act No. 3176 (approved on November 24, 1924), now section 2, Rule 75, of the Rules of Court, which provides that when the marriage is dissolved by the death of either husband or wife, the partnership affairs must be liquidated in the testate or intestate proceedings of the deceased spouse (Moran, Comments on the Rules of Court, 3rd ed., Vol. II, p. 324). Furthermore, there is ground to believe that, as alleged by the appellees, the option agreement in question was nothing more than mere extension of time for the payment of the mortgagee debt, since in the mind of the parties the real transaction had between them was that of loan with security, or equitable mortgage, though as is usual in these cases, it was given the form of sale with right to repurchase. It follows from the foregoing that at the time Paz Yatco made the tender of payment and consigned the necessary amount in court, the said contract of loan with security was still in effect, and as the tender was made in legal currency (Haw * Pia vs. China Banking Corporation, 45 O.G. [Supp. 9] 229), the tender and consignation must be held to produce their legal effect, which is that of relieving the debtor from liability. (Art. 1176, Civil Code; Limkako vs. Teodoro, 74 Phil., 313.) Under this view of the case, it is not necessary to consider the claim of the appellants Victor Potenciano and Lourdes Potenciano and that the Court of Appeals erred in not declaring them owners of the property in question, they having inherited one-half of it from their mother and acquired the other half from their father in the exercise of their right of legal redemption as co-owners. As ownership in the property never passed to their parents, these appellants acquired nothing. Wherefore, with the modifications of the judgment below, let judgment be entered, declaring the obligation evidenced by Exhibit "A", which is hereby held to be mere contract of loan with security or equitable mortgage, already discharged, and ordering the Register of Deeds of Laguna to cancel transfer certificate of title No. 18056 and to issue in lieu thereof a new certificate of title for said property in favor of the heirs of the spouses Edilberto Ocampo and Paz Yatco upon payment of the corresponding fees. With costs against the appellants.
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Paras, Bengzon, C.J., Montemayor, Jugo and Bautista Angelo, JJ., concur. Tuason, J., concurs in the result.

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EXTRAJUDICIAL SETTLEMENT BY AGREEMENT AND TWO-YEAR LIEN G.R. No. L-6207 August 4, 1911

SIMON MALAHACAN, administrator of the goods, chattels and credits of GUILLERMA MARTINEZ, deceased, plaintiff-appellee, vs. JOSEFA IGNACIO, MACARIO IGNACIO, PAULA IGNACIO and AGUEDA BUAG, defendants-appellants. M.P. Leuterio for appellants. No appearance for appellee. MORELAND, J.: This is an appeal from a judgment of the Court of First Instance of the subprovince of Marinduque, Province of Tayabas, the Hon. J.S. Powell presiding, awarding the possession of the lands described in the complaint to the plaintiff, with costs. The action is brought by Simon Malahacan as administrator of the goods, chattels, and credits of Guillerma Martinez, deceased, against the defendants, the only heirs at law of the said deceased, to recover possession of the real estate of which the said Guillerma Martinez died seized, which said real estate the defendants had been occupying for some years before the commencement of this action. Under the provisions of the Civil Code the ownership of real estate passes to the heirs of the owner instantly in his death. Guillerma Martinez, having died seized of the lands involved in this suit, leaving the defendants as her only heirs at law, it follows that said heirs instantly became the owners and were entitled to the immediate possession thereof. It is not alleged in the complaint nor does it appear from the record or the evidence in this case that there were debts outstanding against Guillerma Martinez at the time of her death. The only ground upon which an administrator can demand of the heirs at law possession of the real estate of which his intestate died seized is that such land will be required to be sold to pay the debts of the deceased. In the case of Ilustre, administrator of the estate of the deceased Calzado vs. Alaras Frondosa (17 Phil. Rep., 321), this court said: Under the provisions of the Civil Code (arts. 657-661), the rights to the succession of a person are transmitted from the moment of his death; in other words, 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. In the absence of debts existing against the estate, the heirs may enter upon the administration of the said property immediately. If they desire to administer it jointly, they may do so. If they desire to partition it among themselves and can do this by mutual agreement, they also have that privilege. The Code of Procedure in Civil Actions provides how an estate may be divided by a petition for partition in case they can not mutually agree in the division. When there are no debts existing against the estate, there is certainly no occasion for the intervention of an administrator in the settlement and partition of the estate among the heirs. When the heirs are all of lawful age and there are no debts, there is no reason why the estate should be burdened with the costs and expenses of an administrator. The property belonging absolutely to the heirs, in the absence of existing debts against the estate, the administrator has no right to intervene in any way whatever in the division of the estate among the heirs. They are coowners of an undivided estate and the law offers them a remedy for the division of the same among themselves. There is nothing in the present case to show that the heirs requested the appointment of the administrator, or that they intervened in any way whatever in the present action. If there are any heirs of the estate who have not received their participation, they have their remedy by petition for partition of the said estate. The judgment appealed from is reversed and the complaint dismissed on the merits, without special findings as to costs. Torres, Mapa, Johnson, and Carson, JJ., concur.

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G.R. No. L-21725

November 29, 1968

AURELIO ARCILLAS, petitioner, vs. HON. GREGORIO D. MONTEJO, Judge of the Court of First Instance of Zamboanga, MODESTA ALFARO, GERONIMO ARCILLAS and VICENTE ARCILLAS, respondents. Antonio J. Calvento for petitioner. T. de los Santos for respondents. MAKALINTAL, J.: Filed before the Court of First Instance of Zamboanga on November 12 and 16, 1962, respectively, are two separate petitions having direct and special reference to Lot No. 276. This lot, covered by Transfer Certificate of Title No. RT-244 (2155 (0656), forms a major part of the estate of the late Eustaquio Arcillas who died intestate on March 8, 1958 in the City of Zamboanga. In the petition dated November 12 Geronimo Arcillas, one of the heirs of the deceased, sought the cancellation of TCT No. RT-244 in the name of the deceased and prayed for the issuance of a new certificate of title in the names of the heirs in the enumerated proportions alleged in the petition. It was claimed that at various dates after the death of the deceased, several transactions affecting Lot No. 276 transpired, prominent among which were the separate sales of their respective shares and participation in Lot No. 276 executed by four (4) other children of the deceased in favor of co-heir Vicente Arcillas. Invoking section 112 of Act No. 496 (Land Registration Act), Geronimo Arcillas argued that the proportion of each heir's participation in said lot should be accurately reflected in a new certificate of title. But before any other material pleading could be filed with respect to this petition, five (5) other children of the deceased filed the November 16 petition aforementioned. This later petition, docketed as Special Proceeding No. 632, prayed for the issuance of letters of administration in favor of herein petitioner preparatory to the final settlement of the deceased's estate. Paragraphs 3 and 4 of this later petition, insofar as pertinent to this case, read: 3. That the deceased left an estate consisting of real property in Zamboanga City with a probable value of not less than SIX THOUSAND PESOS (P6,000.00), Philippine Currency; 4. That as far as petitioners know, the deceased left no debts remaining unpaid;

In the meantime, on November 23, 1962 herein petitioner filed his opposition to the November 12 petition on the ground that inasmuch as Lot No. 276 the subject matter thereof was included in the estate of the deceased for which a petition for administration had actually been filed and was awaiting resolution, that petition (the one dated November 12) should be held in abeyance until after Special Proceeding No. 632 was closed and terminated. Recognizing then the merit of petitioner's ground, respondent Judge issued an order on December 1, 1963 temporarily holding in abeyance resolution of the November 12 petition until the termination of the intestate proceedings. Meanwhile, in his answer to the November 16 petition (Sp. Proc. No. 632) Geronimo Arcillas, this time joined by Vicente Arcillas and the widow Modesta Alfaro, opposed the issuance of letters of administration to herein petitioner, arguing that inasmuch as Lot No. 276 was the only property left by the deceased and the deceased left no debts, the petition for administration was improper. However petitioner, in his reply on January 18, 1963, insisted that there were still other properties of the estate of the deceased besides Lot No. 276; he likewise took issue with respondents' view that administration proceedings could be dispensed with asserting, firstly, that there was no unanimity among the heirs for extrajudicial partition and, secondly, that some of the heirs had been unduly deprived of their participation in the estate. On March 8, 1963 respondent court denied the November 16 petition for the issuance of letters of administration and at the same time gave due course to the November 12 petition. Reasoned the court: "... to obviate the necessity of spending uselessly which would only deplete the funds of the estate; to avoid unnecessary delay in the partition of the property involved herein, and following the doctrines established by the Honorable Supreme Court in several cases of the same nature, which is in consonance with the provisions of Section 1, Rule 74 of the Rules of Court, the court is of the opinion that the herein petition (should) be denied and (holds that) the cadastral motion of the oppositor Geronimo Arcillas covering the same property is the most expedient and proper action." Unable to have this order reconsidered petitioner filed the instant petition for certiorari with mandamus and preliminary injunction. On December 2, 1963, upon filing by petitioner of the required bond, we issued a writ of preliminary injunction enjoining respondent Judge from proceeding with the hearing of the "cadastral motion" dated November 12, 1962. The issues to be determined are whether respondent Judge acted properly (1) in dismissing the administration proceedings under the authority of section 1, rule 74
16

of the New Rules of Court upon averments that the estate left no debts and all the heirs entitled to share in its distribution are all of age and (2) in maintaining that the "cadastral motion" brought under the provision of section 112 of the Land Registration Act was the more proper proceeding under the circumstances. Under section 1, Rule 74 of the New Rules of Court, if the decedent left no will and no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the Register of Deeds and should they disagree, they may do so in an ordinary action of partition. And primarily anchored on the proposition that inasmuch as in the present case the minimum requirements of the aforementioned section obtain, i.e. the decedent left no will and no debts and the heirs are all of age, respondents claim that there is no necessity for the institution of special proceedings and the appointment of an administrator for the settlement of the estate for the reason that it is superfluous and unnecessary. In other words, respondents apparently view section 1 of Rule 74 as mandatory upon the heirs so long as the deceased left no will nor any pending obligations to be paid and his heirs are all of age. We cannot entirely agree with the respondents. On a similar contention in the past, we had occasion to explain in Rodriguez, et al. v. Tan, et al., 92 Phil. 273: ... section I does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligation, if they do not desire to resort for good reasons to an ordinary action of partition. While section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action of partition, it does not compel them to do so if they have good reasons to take a different course of action. Said section is not mandatory or compulsory as may be gleaned from the use made therein of the word may. If the intention were otherwise the framer of the rule would have employed the word shall as was done in other provisions that are mandatory in character. Note that the word may its used not only once but in the whole section which indicates an intention to leave the matter entirely to the discretion of the heirs. Having decided to institute administration proceedings instead of resorting to the less expensive modes of settlement of the estate, i.e. extrajudicial settlement or ordinary action for partition, the heirs may not then be rebuffed in the exercise of their discretion granted under section 1 of Rule 74 of the Rules of Court merely on

the ground that the expenses usually common in administration proceedings may deplete the funds of the estate. The resultant delay and necessary expenses incurred thereafter are consequences which must be deemed to have been voluntarily assumed by the heirs themselves so that they may not in the future be heard to complain of these matters. Besides, the truth or veracity of petitioner's claim as to the alleged existence of other properties of the deceased aside from the lot in question can be more adequately ascertained in administration proceedings rather than in any other action. Understandably the allowance of the hearing of the "cadastral" motion, supposedly brought under the authority of section 112 of Act 496, cannot be sustained. While this section authorizes, among others, a person in interest to ask the court for any erasure, alteration, or amendment of a certificate of title "upon the ground that registered interests of any description, whether vested, contingent, expectant, or inchoate have terminated and ceased," and apparently the November 12 petition comes within its scope, such relief can only be granted if there is unanimity among the parties, or there is no adverse claim or serious objection on the part of any party in interest; otherwise the case becomes controversial and should be threshed out in an ordinary case or in the case where the incident properly belongs (see Puguid v. Reyes, L-21311, August 10, 1967 and the cases cited therein). In the instant case the obvious lack of unanimity among the parties in interest, manifestly demonstrated by petitioners' express objection to the cancellation of TCT No. RT244, sufficiently removes the November 12 petition from the scope of section 112 of Act 496. Besides, the proceedings provided in the Land Registration Act are summary in nature and hence inadequate for the litigation of issues which properly pertain to the case where the incident belongs. IN VIEW OF THE FOREGOING, judgment is hereby rendered setting aside the appealed orders and directing respondent Judge or whoever is presiding the court below to reinstate Special Proceedings No. 632; the writ of preliminary injunction previously issued enjoining respondent Judge from proceeding with the hearing of the "cadastral" motion dated November 12, 1962 is hereby made permanent. Costs against respondents, except respondent Judge. Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro, Fernando and Capistrano, JJ., concur.

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G.R. No. L-81147 June 20, 1989 VICTORIA BRINGAS PEREIRA, petitioner, vs. THE HONORABLE COURT OF APPEALS and RITA PEREIRA NAGAC, respondents. Benjamin J. Quitoriano for petitioner. Linzag-Arcilla & Associates Law Offices for private respondent.

On March 23,1983, petitioner filed her opposition and motion to dismiss the 2 petition of private respondent alleging that there exists no estate of the deceased for purposes of administration and praying in the alternative, that if an estate does exist, the letters of administration relating to the said estate be issued in her favor as the surviving spouse. In its resolution dated March 28, 1985, the Regional Trial Court, appointed private respondent Rita Pereira Nagac administratrix of the intestate estate of Andres de Guzman Pereira upon a bond posted by her in the amount of Pl,000.00. The trial court ordered her to take custody of all the real and personal properties of the deceased and to file an inventory thereof within three months after receipt of the 3 order. Not satisfied with the resolution of the lower court, petitioner brought the case to the Court of Appeals. The appellate court affirmed the appointment of private 4 respondent as administratrix in its decision dated December 15, 1987. Hence, this petition for review on certiorari where petitioner raises the following issues: (1) Whether or not there exists an estate of the deceased Andres de Guzman Pereira for purposes of administration; (2) Whether or not a judicial administration proceeding is necessary where there are no debts left by the decedent; and, (3) Who has the better right to be appointed as administratrix of the estate of the deceased, the surviving spouse Victoria Bringas Pereira or the surviving sister Rita Pereira Nagac? Anent the first issue, petitioner contends that there exists no estate of the deceased for purposes of administration for the following reasons: firstly, the death benefits from PAL, PALEA, PESALA and the SSS belong exclusively to her, being the sole beneficiary and in support of this claim she submitted letter-replies from these institutions showing that she is the exclusive beneficiary of said death benefits; secondly, the savings deposits in the name of her deceased husband with the PNB and the PCIB had been used to defray the funeral expenses as supported by several receipts; and, finally, the only real property of the deceased has been extrajudicially settled between the petitioner and the private respondent as the only surviving heirs of the deceased. Private respondent, on the other hand, argues that it is not for petitioner to decide what properties form part of the estate of the deceased and to appropriate them for herself. She points out that this function is vested in the court in charge of the intestate proceedings.
18

GANCAYCO, J.: Is a judicial administration proceeding necessary when the decedent dies intestate without leaving any debts? May the probate court appoint the surviving sister of the deceased as the administratrix of the estate of the deceased instead of the surviving spouse? These are the main questions which need to be resolved in this case. Andres de Guzman Pereira, an employee of the Philippine Air Lines, passed away on January 3, 1983 at Bacoor, Cavite without a will. He was survived by his legitimate spouse of ten months, the herein petitioner Victoria Bringas Pereira, and his sister Rita Pereira Nagac, the herein private respondent. On March 1, 1983, private respondent instituted before Branch 19 of the Regional Trial Court of Bacoor, Cavite, Special Proceeding No. RTC-BSP-83-4 for the issuance of letters of administration in her favor pertaining to the estate of the deceased 1 Andres de Guzman Pereira. In her verified petition, private respondent alleged the following: that she and Victoria Bringas Pereira are the only surviving heirs of the deceased; that the deceased left no will; that there are no creditors of the deceased; that the deceased left several properties, namely: death benefits from the Philippine Air Lines (PAL), the PAL Employees Association (PALEA), the PAL Employees Savings and Loan Association, Inc. (PESALA) and the Social Security System (SSS), as well as savings deposits with the Philippine National Bank (PNB) and the Philippine Commercial and Industrial Bank (PCIB), and a 300 square meter lot located at Barangay Pamplona, Las Pinas, Rizal and finally, that the spouse of the deceased (herein petitioner) had been working in London as an auxiliary nurse and as such one-half of her salary forms part of the estate of the deceased.

Petitioner asks this Court to declare that the properties specified do not belong to the estate of the deceased on the basis of her bare allegations as aforestated and a handful of documents. Inasmuch as this Court is not a trier of facts, We cannot order an unqualified and final exclusion or non-exclusion of the property involved 5 from the estate of the deceased. The resolution of this issue is better left to the probate court before which the administration proceedings are pending. The trial court is in the best position to receive evidence on the discordant contentions of the parties as to the assets of the decedent's estate, the valuations thereof and the rights of the transferees of some 6 of the assets, if any. The function of resolving whether or not a certain property should be included in the inventory or list of properties to be administered by the administrator is one clearly within the competence of the probate court. However, the court's determination is only provisional in character, not conclusive, and is subject to the final decision in a separate action which may be instituted by the 7 parties. Assuming, however, that there exist assets of the deceased Andres de Guzman Pereira for purposes of administration, We nonetheless find the administration proceedings instituted by private respondent to be unnecessary as contended by petitioner for the reasons herein below discussed. The general rule is that when a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Section 6, Rule 78, in case the deceased 8 left no will, or in case he had left one, should he fail to name an executor therein. 9 An exception to this rule is established in Section 1 of Rule 74. Under this exception, when all the heirs are of lawful age and there are no debts due from the estate, they may agree in writing to partition the property without instituting the judicial administration or applying for the appointment of an administrator. Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition. While Section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not compel them to do so if they have good reasons to take a different course 10 of action. It should be noted that recourse to an administration proceeding even if the estate has no debts is sanctioned only if the heirs have good reasons for not resorting to an action for partition. Where partition is possible, either in or out of

court, the estate should not be burdened with an administration proceeding 11 without good and compelling reasons. Thus, it has been repeatedly held that when a person dies without leaving pending obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration, which is always long and costly, or to apply for the appointment of an administrator by the Court. It has been uniformly held that in such case the judicial administration and the appointment of an administrator 12 are superfluous and unnecessary proceedings . Now, what constitutes "good reason" to warrant a judicial administration of the estate of a deceased when the heirs are all of legal age and there are no creditors will depend on the circumstances of each case. In one case,
13

We said: Again the petitioner argues that only when the heirs do not have any dispute as to the bulk of the hereditary estate but only in the manner of partition does section 1, Rule 74 of the Rules of Court apply and that in this case the parties are at loggerheads as to the corpus of the hereditary estate because respondents succeeded in sequestering some assets of the intestate. The argument is unconvincing, because, as the respondent judge has indicated, questions as to what property belonged to the deceased (and therefore to the heirs) may properly be ventilated in the partition proceedings, especially where such property is in the hands of one heir.

In another case, We held that if the reason for seeking an appointment as administrator is merely to avoid a multiplicity of suits since the heir seeking such appointment wants to ask for the annulment of certain transfers of property, that same objective could be achieved in an action for partition and the trial court is not 14 justified in issuing letters of administration. In still another case, We did not find so powerful a reason the argument that the appointment of the husband, a usufructuary forced heir of his deceased wife, as judicial administrator is necessary in order for him to have legal capacity to appear in the intestate proceedings of his wife's deceased mother, since he may just adduce proof of his being a forced heir in 15 the intestate proceedings of the latter. We see no reason not to apply this doctrine to the case at bar. There are only two surviving heirs, a wife of ten months and a sister, both of age. The parties admit
19

that there are no debts of the deceased to be paid. What is at once apparent is that these two heirs are not in good terms. The only conceivable reason why private respondent seeks appointment as administratrix is for her to obtain possession of the alleged properties of the deceased for her own purposes, since these properties are presently in the hands of petitioner who supposedly disposed of them fraudulently. We are of the opinion that this is not a compelling reason which will necessitate a judicial administration of the estate of the deceased. To subject the estate of Andres de Guzman Pereira, which does not appear to be substantial especially since the only real property left has been extrajudicially settled, to an administration proceeding for no useful purpose would only unnecessarily expose it 16 to the risk of being wasted or squandered. In most instances of a similar nature, the claims of both parties as to the properties left by the deceased may be properly ventilated in simple partition proceedings where the creditors, should there be any, are protected in any event. We, therefore, hold that the court below before which the administration proceedings are pending was not justified in issuing letters of administration, there being no good reason for burdening the estate of the deceased Andres de Guzman Pereira with the costs and expenses of an administration proceeding. With the foregoing ruling, it is unnecessary for us to delve into the issue of who, as between the surviving spouse Victoria Bringas Pereira and the sister Rita Pereira Nagac, should be preferred to be appointed as administratrix. WHEREFORE, the letters of administration issued by the Regional Trial Court of Bacoor to Rita Pereira Nagac are hereby revoked and the administration proceeding dismissed without prejudice to the right of private respondent to commence a new action for partition of the property left by Andres de Guzman Pereira. No costs. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

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[G.R. No. 134329. January 19, 2000] VERONA PADA-KILARIO and RICARDO KILARIO petitioners, vs. COURT OF APPEALS and SILVERIO PADA, respondents. ULANDU DECISION DE LEON, JR., J.: The victory1[1] of petitioner spouses Ricardo and Verona Kilario in the Municipal Circuit Trial Court2[2] in an ejectment suit3[3] filed against them by private respondent Silverio Pada, was foiled by its reversal4[4] by the Regional Trial Court5[5] on appeal. They elevated their cause6[6] to respondent Court of Appeals7[7] which, however, promulgated a Decision8[8] on May 20, 1998, affirming the Decision of the Regional Trial Court. The following facts are undisputed: One Jacinto Pada had six (6) children, namely, Marciano, Ananias, Amador, Higino, Valentina and Ruperta. He died intestate. His estate included a parcel of land of residential and coconut land located at Poblacion, Matalom, Leyte, denominated as Cadastral Lot No. 5581 with an area of 1,301.92 square meters. It is the northern portion of Cadastral Lot No. 5581 which is the subject of the instant controversy.

During the lifetime of Jacinto Pada, his half-brother, Feliciano Pada, obtained permission from him to build a house on the northern portion of Cadastral Lot No. 5581. When Feliciano died, his son, Pastor, continued living in the house together with his eight children. Petitioner Verona Pada-Kilario, one of Pastor's children, has been living in that house since 1960. Sometime in May, 1951, the heirs of Jacinto Pada entered into an extra-judicial partition of his estate. For this purpose, they executed a private document which they, however, never registered in the Office of the Registrar of Deeds of Leyte. At the execution of the extra-judicial partition, Ananias was himself present while his other brothers were represented by their children. Their sisters, Valentina and Ruperta, both died without any issue. Marciano was represented by his daughter, Maria; Amador was represented by his daughter, Concordia; and Higino was represented by his son, Silverio who is the private respondent in this case. It was to both Ananias and Marciano, represented by his daughter, Maria, that Cadastral Lot No. 5581 was allocated during the said partition. When Ananias died, his daughter, Juanita, succeeded to his right as co-owner of said property. On June 14, 1978, Juanita Pada sold to Engr. Ernesto Paderes, the right of his father, Ananias, as co-owner of Cadastral Lot No. 5881. On November 17, 1993, it was the turn of Maria Pada to sell the co-ownership right of his father, Marciano. Private respondent, who is the first cousin of Maria, was the buyer. Thereafter, private respondent demanded that petitioner spouses vacate the northern portion of Cadastral Lot No. 5581 so his family can utilize the said area. They went through a series of meetings with the barangay officials concerned for the purpose of amicable settlement, but all earnest efforts toward that end, failed. On June 26, 1995, private respondent filed in the Municipal Circuit Trial Court of Matalom, Leyte, a complaint for ejectment with prayer for damages against petitioner spouses. Korte On July 24, 1995, the heirs of Amador Pada, namely, Esperanza Pada-Pavo, Concordia Pada-Bartolome, and Angelito Pada, executed a Deed of Donation9[9]

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transferring to petitioner Verona Pada-Kilario, their respective shares as co-owners of Cadastral Lot No. 5581. On February 12, 1996, petitioner spouses filed their Answer averring that the northern portion of Cadastral Lot No. 5581 had already been donated to them by the heirs of Amador Pada. They contended that the extra-judicial partition of the estate of Jacinto Pada executed in 1951 was invalid and ineffectual since no special power of attorney was executed by either Marciano, Amador or Higino in favor of their respective children who represented them in the extra-judicial partition. Moreover, it was effectuated only through a private document that was never registered in the office of the Registrar of Deeds of Leyte. The Municipal Circuit Trial Court rendered judgment in favor of petitioner spouses. It made the following findings: "After a careful study of the evidence submitted by both parties, the court finds that the evidence adduced by plaintiff failed to establish his ownership over x x x Cadastral Lot No. 5581 x x x while defendants has [sic] successfully proved by preponderance of evidence that said property is still under a community of ownership among the heirs of the late Jacinto Pada who died intestate. If there was some truth that Marciano Pada and Ananias Pada has [sic] been adjudicated jointly of [sic] the abovedescribed residential property x x x as their share of the inheritance on the basis of the alleged extra judicial settlement, how come that since 1951, the date of partition, the share of the late Marciano Pada was not transferred in the name of his heirs, one of them Maria Pada-Pavo and still remain [sic] in the name of Jacinto Pada up to the present while the part pertaining to the share of Ananias Pada was easily transferred in the name of his heirs x x x. "The alleged extra judicial settlement was made in private writing and the genuineness and due execution of said document was assailed as doubtful and it appears that most of the heirs were not participants and signatories of said settlement, and there was lack of special power of attorney to [sic] those who claimed to have represented their co-heirs in the participation [sic] and signing of the said extra judicial statement. Sclaw

"Defendants were already occupying the northern portion of the above-described property long before the sale of said property on November 17, 1993 was executed between Maria Pada-Pavo, as vendor and the plaintiff, as vendee. They are in possession of said portion of the above-described property since the year 1960 with the consent of some of the heirs of Jacinto Pada and up to the [sic] present some of the heirs of Jacinto Pada has [sic] donated x x x their share of [sic] the above-described property to them, virtually converting defendants' standing as co-owners of the land under controversy. Thus, defendants as co-owners became the undivided owners of the whole estate x x x. As co-owners of x x x Cadastral Lot No. 5581 x x x their possession in the northern portion is being [sic] lawful."10[10] From the foregoing decision, private respondent appealed to the Regional Trial Court. On November 6, 1997, it rendered a judgment of reversal. It held: "x x x [T]he said conveyances executed by Juanita Pada and Maria Pada Pavo were never questioned or assailed by their co-heirs for more than 40 years, thereby lending credence on [sic] the fact that the two vendors were indeed legal and lawful owners of properties ceded or sold. x x x At any rate, granting that the coheirs of Juanita Pada and Maria Pada Pavo have some interests on the very lot assigned to Marciano and Ananias, nevertheless, said interests had long been sadly lost by prescription, if not laches or estoppel. "It is true that an action for partition does not prescribe, as a general rule, but this doctrine of imprescriptibility cannot be invoked when one of the heirs possessed the property as an owner and for a period sufficient to acquire it by prescription because from the moment one of the co-heirs claim [sic] that he is the absolute owner and denies the rest their share of the community property, the question then involved is no longer one for partition but of ownership. x x x Since [sic] 1951 up to 1993 covers a period of 42 long years. Clearly, whatever right some of the co-heirs may have, was long extinguished by laches, estoppel or prescription. Sc lex

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"x x x "x x x [T]he deed of donation executed by the Heirs of Amador Pada, a brother of Marciano Pada, took place only during the inception of the case or after the lapse of more than 40 years reckoned from the time the extrajudicial partition was made in 1951. Therefore, said donation is illegal and invalid [sic] the donors, among others, were absolutely bereft of any right in donating the very property in question."11[11] The dispositive portion of the decision of the Regional Trial Court reads as follows: "WHEREFORE, a judgment is hereby rendered, reversing the judgment earlier promulgated by the Municipal Circuit Trial Court of Matalom, Leyte, [sic] consequently, defendants-appellees are hereby ordered: "1. To vacate the premises in issue and return peaceful possession to the appellant, being the lawful possessor in concept of owner; "2. To remove their house at their expense unless appellant exercises the option of acquiring the same, in which case the pertinent provisions of the New Civil Code has to be applied; "3. Ordering the defendants-appellees to pay monthly rental for their occupancy and use of the portion of the land in question in the sum of P100.00 commencing on June 26, 1995 when the case was filed and until the termination of the present case; "4. Ordering the defendants to pay to the appellant the sum of P5,000.00 as moral damages and the further sum of P5,000.00 as attorney's fees; "5. Taxing defendants to pay the costs of suit."12[12]

Petitioners filed in the Court of Appeals a petition for review of the foregoing decision of the Regional Trial Court. On May 20, 1998, respondent Court of Appeals rendered judgment dismissing said petition. It explained: x law "Well-settled is the rule that in an ejectment suit, the only issue is possession de facto or physical or material possession and not de jure. Hence, even if the question of ownership is raised in the pleadings, the court may pass upon such issue but only to determine the question of possession, specially if the former is inseparably linked with the latter. It cannot dispose with finality the issue of ownership, such issue being inutile in an ejectment suit except to throw light on the question of possession x x x. "Private respondent Silverio Pada anchors his claim to the portion of the land possessed by petitioners on the Deed of Sale executed in his favor by vendor Maria Pada-Pavo, a daughter of Marciano, son of Jacinto Pada who was the registered owner of the subject lot. The right of vendee Maria Pada to sell the property was derived from the extra-judicial partition executed in May 1951 among the heirs of Jacinto Pada, which was written in a Bisayan dialect signed by the heirs, wherein the subject land was adjudicated to Marciano, Maria Pavo's father, and Ananias Pada. Although the authenticity and genuineness of the extra-judicial partition is now being questioned by the heirs of Amador Pada, no action was ever previously filed in court to question the validity of such partition. "Notably, petitioners in their petition admitted among the antecedent facts that Maria Pavo is one of the co-owners of the property originally owned by Jacinto Pada x x x and that the disputed lot was adjudicated to Marciano (father of Maria Pavo) and Ananias, and upon the death of Marciano and Ananias, their heirs took possession of said lot, i.e. Maria Pavo the vendor for Marciano's share and Juanita for Ananias' share x x x. Moreover, petitioners do not dispute the findings of the respondent court that during the cadastral survey of Matalom, Leyte, the share of Maria Pada Pavo was denominated as Lot No. 5581, while the share of Juanita Pada was denominated as Lot No. 6047, and that both Maria Pada Pavo and Juanita were in possession of their
23

respective hereditary shares. Further, petitioners in their Answer admitted that they have been occupying a portion of Lot No. 5581, now in dispute without paying any rental owing to the liberality of the plaintiff x x x. Petitioners cannot now impugn the aforestated extrajudicial partition executed by the heirs in 1951. As owner and possessor of the disputed property, Maria Pada, and her vendee, private respondent, is entitled to possession. A voluntary division of the estate of the deceased by the heirs among themselves is conclusive and confers upon said heirs exclusive ownership of the respective portions assigned to them x x x. "The equally belated donation of a portion of the property in dispute made by the heirs of Amador Pada, namely, Concordia, Esperanza and Angelito, in favor of petitioner Verona Pada is a futile attempt to confer upon the latter the status of co-owner, since the donors had no interest nor right to transfer. x x x This gesture appears to be a mere afterthought to help petitioners to prolong their stay in the premises. Furthermore, the respondent court correctly pointed out that the equitable principle of laches and estoppel come into play due to the donors' failure to assert their claims and alleged ownership for more than forty (40) years x x x. Accordingly, private respondent was subrogated to the rights of the vendor over Lot No. 5581 which include [sic] the portion occupied by petitioners."13[13] Sc Petitioner spouses filed a Motion for Reconsideration of the foregoing decision. On June 16, 1998, respondent Court of Appeals issued a Resolution denying said motion. Hence this petition raising the following issues: "I. WHETHER THE COURT OF APPEALS ERRED IN NOT RULING THAT PETITIONERS, AS CO-OWNERS, CANNOT BE EJECTED FROM THE PREMISES CONSIDERING THAT THE HEIRS OF JACINTO PADA

DONATED TO THEM THEIR UNDIVIDED INTEREST IN THE PROPERTY IN DISPUTE. "II. WHETHER THE COURT OF APPEALS ERRED IN NOT RULING THAT WHAT MARIA PADA SOLD WAS HER UNDIVIDED SHARE IN THE PROPERTY IN DISPUTE. "III. WHETHER OR NOT THE PETITIONERS ARE BUILDERS IN GOOD FAITH."14[14] There is no merit to the instant petition. First. We hold that the extrajudicial partition of the estate of Jacinto Pada among his heirs made in 1951 is valid, albeit executed in an unregistered private document. No law requires partition among heirs to be in writing and be registered in order to be valid.15[15] The requirement in Sec. 1, Rule 74 of the Revised Rules of Court that a partition be put in a public document and registered, has for its purpose the protection of creditors and the heirs themselves against tardy claims.16[16] The object of registration is to serve as constructive notice to others. It follows then that the intrinsic validity of partition not executed with the prescribed formalities is not undermined when no creditors are involved.17[17] Without creditors to take into consideration, it is competent for the heirs of an estate to enter into an agreement for distribution thereof in a manner and upon a plan different from those provided by the rules from which, in the first place, nothing can be inferred that a writing or other formality is essential for the partition to be valid.18[18] The partition of inherited property need not be embodied in a

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public document so as to be effective as regards the heirs that participated therein.19[19] The requirement of Article 1358 of the Civil Code that acts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property, must appear in a public instrument, is only for convenience, non-compliance with which does not affect the validity or enforceability of the acts of the parties as among themselves.20[20] And neither does the Statute of Frauds under Article 1403 of the New Civil Code apply because partition among heirs is not legally deemed a conveyance of real property, considering that it involves not a transfer of property from one to the other but rather, a confirmation or ratification of title or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance.21[21] The 1951 extrajudicial partition of Jacinto Pada's estate being legal and effective as among his heirs, Juanita and Maria Pada validly transferred their ownership rights over Cadastral Lot No. 5581 to Engr. Paderes and private respondent, respectively.22[22] Scmis Second. The extrajudicial partition which the heirs of Jacinto Pada executed voluntarily and spontaneously in 1951 has produced a legal status.23[23] When they discussed and agreed on the division of the estate of Jacinto Pada, it is presumed that they did so in furtherance of their mutual interests. As such, their division is conclusive, unless and until it is shown that there were debts existing against the estate which had not been paid.24[24] No showing, however, has been made of any unpaid charges against the estate of Jacinto Pada. Thus, there is no reason why the heirs should not be bound by their voluntary acts. The belated act of Concordia, Esperanza and Angelito, who are the heirs of Amador Pada, of donating the subject property to petitioners after forty four (44) years of never having disputed the validity of the 1951 extrajudicial partition that allocated

the subject property to Marciano and Ananias, produced no legal effect. In the said partition, what was allocated to Amador Pada was not the subject property which was a parcel of residential land in Sto. Nino, Matalom, Leyte, but rather, one-half of a parcel of coconut land in the interior of Sto. Nino St., Sabang, Matalom, Leyte and one-half of a parcel of rice land in Itum, Sta. Fe, Matalom, Leyte. The donation made by his heirs to petitioners of the subject property, thus, is void for they were not the owners thereof. At any rate it is too late in the day for the heirs of Amador Pada to repudiate the legal effects of the 1951 extrajudicial partition as prescription and laches have equally set in. Third. Petitioners are estopped from impugning the extrajudicial partition executed by the heirs of Jacinto Pada after explicitly admitting in their Answer that they had been occupying the subject property since 1960 without ever paying any rental as they only relied on the liberality and tolerance of the Pada family.25[25] Their admissions are evidence of a high order and bind them insofar as the character of their possession of the subject property is concerned. Considering that petitioners were in possession of the subject property by sheer tolerance of its owners, they knew that their occupation of the premises may be terminated any time. Persons who occupy the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that they will vacate the same upon demand, failing in which a summary action for ejectment is the proper remedy against them.26[26] Thus, they cannot be considered possessors nor builders in good faith. It is well-settled that both Article 44827[27] and Article 54628[28] of the New Civil Code which allow full reimbursement of useful improvements and retention of the premises until reimbursement is made, apply only to a possessor in good faith, i.e., one who builds on land with the belief that he is the owner thereof.29[29] Verily, persons whose occupation of a realty is by sheer tolerance of its owners are not possessors in good faith. Neither did the promise of Concordia, Esperanza and Angelito Pada that they

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were going to donate the premises to petitioners convert them into builders in good faith for at the time the improvements were built on the premises, such promise was not yet fulfilled, i.e., it was a mere expectancy of ownership that may or may not be realized.30[30] More importantly, even as that promise was fulfilled, the donation is void for Concordia, Esperanza and Angelito Pada were not the owners of Cadastral Lot No. 5581. As such, petitioners cannot be said to be entitled to the value of the improvements that they built on the said lot. WHEREFORE, the petition for review is HEREBY DENIED. Costs against petitioners. SO ORDERED.

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CONTRIBUTION FROM DISTRIBUTION, EXECUTION AGAINST BOND OR SALE OF REALTY OF DECEDENT

G.R. No. L-6871

January 15, 1912

JOSE McMICKING, administrator of the estate of Margarita Jose, plaintiffappellant, vs. BENITO SY CONBIENG, administrator of the estate of Pio de la Gurdia Barretto Sy Pioco, defendant-appellee. Haussermann, Cohn & Fisher for appellant. D. R. Williams for appellee. MORELAND, J.: On or about the 5th of February, 1902, one Margarita Jose, a native of the Philippine Islands, died at Amoy, in the empire of China, leaving an estate consisting of personal property partly in Hongkong and partly in the Philippine Islands. On the 16th of April, 1902, one Engracio Palanca was appointed administrator with the will annexed of the estate of the said Margarita Jose, deceased, by the Court of First Instance of the city of Manila, and Mariano Ocampo Lao Sempco and Dy Cunyao became his sureties and qualified as such in the sum of P60,000. After the execution of this bond the said Palanca, as such administrator, took possession of all the property of the said Margarita Jose, amounting in all to $58,820.29 Hongkong currency. On the 22d of April, 1904, the Mariano Ocampo Lao Sempco died in the city of Manila, testate. The fact of his death was brought to the attention of the Court of First Instance of said city on the 2nd of November, 1904, by an application made by one of the legatees of said Margarita Jose, deceased, for an order directing said administrator to furnish a new bond. Pursuant to this application the court, on the 10th of November, 1904, made an order directing the said Palanca to furnish a bond in the sum of P60,000 to take the place of the undertaking upon which said Mariano Ocampo, deceased, and Dy Cunyao were sureties. The bond thus required was duly filed on the 22nd of November, 1904, the sureties thereon being Juan Fernandez, Luis Saenz de Vismanos and Alejandro Palanca. On the 11th of May, 1904, one Doroteo Velasco was appointed administrator with the will annexed of said Mariano Ocampo Lao Sempco, deceased, and on July 7 following Mariano Velasco and Pio de la Guardia Barretto qualified as sureties of the said administrator in the sum of P30,000. Said Mariano Ocampo Lao Sempco left him

surviving as his heirs at law and devises and legatees one daughter, to whom he devised two-thirds of his estate, and three sons in China, to whom he devised the remaining one-third. On the 27th of July, 1904, said Doroteo Velasco, as such administrator, filed with the court a complete report and inventory of the property of the deceased, together with a statement of all his debts and liabilities. As a part of this report and inventory said administrator filed an instrument signed by all of the persons interested in the estate of the said Mariano Ocampo agreeing to the partition of he estate among themselves without proceedings in court, at the same time assuming the payment of all obligations against the estate. This agreement of partition was drawn and executed under sections 596 and 597 of the Code of Civil Procedure for the purposes and to attain the ends therein mentioned. On the 28th of July, 1904, the Court of First Instance of the city of Manila, upon the request of the administrator with the will annexed and of all parties interested in the estate of the said Mariano Ocampo, deceased, entered an order in said agreement. Pursuant to such agreement and order of the court approving the same, and after all the liabilities under which said estate lay had been fully paid and satisfied, the said Doroteo Velasco, as said administrator, delivered to the devisees and legatees of the said Mariano Ocampo, deceased, all of the property of said decedent pursuant to the terms of said agreement of partition, leaving in the hands of said administrator no property or thing of value whatsoever belonging to the said estate. From that time forward said administrator has not had in his possession or control any of the assets of the said estate and has not had any participation in the management thereof. At the time the agreement for participation was made and signed and at the time of the distribution of the property of the estate pursuant thereto, no committee had been appointed to hear claims against the estate of the said Mariano Ocampo, deceased, and no notice had been published to creditors of the said deceased to present their claims against the said estate in the manner prescribed by law. On the 30th of March, 1908, by virtue of an order made by the Court of First Instance of the city of Manila, upon application of all parties interested, the said Engracio Palanca was removed from office as administrator of the estate of said Margarita Jose, deceased, and the plaintiff herein, Jose McMicking, was appointed in his stead. The said Palanca was removed from office by reason of the fact that he failed and refused to render an account of the property and funds of the estate of the said Margarita Jose, deceased, which has come to his possession as such administrator, and failed and refused, on order of the court, to deliver said property and funds or any portion thereof to the court or to the said Jose McMicking, his successor. Instead of so doing, he retained possession of said property and funds, absconded with the same, and never returned to the Philippine Islands. At the time of his removal he was indebted to the estate in the sum of P41,960.15, no part of which has ever been received by the estate or by its representative.
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On the 30th of June, 1909, Jose McMicking, as administrator, made an application to the court for the appointment of commissioners of the estate of said Mariano Ocampo for the purpose of hearing claims against the estate. The commission having been appointed and qualified, a claim was presented to it by the plaintiff based upon the defalcation of said Engracio Palanca, as administration with the will annexed of Margarita Jose, deceased, which claim was allowed by said commission and later approved by the court, which directed that the said claim be paid by Doroteo Velasco, if he had sufficient funds to make such payment. No part of the sum thus found to be due by the commission has been paid to the representative of the estate of said Margarita Jose, deceased. On the 3rd of November, 1905, Pio de la Barretto, who, it will be remembered, was one of the sureties on the undertaking of Doroteo Velasco, as administrator with the will annexed of Mariano Ocampo, deceased, died in the city of Manila, leaving an estate consisting of real and personal property located in the city. Said deceased left a will which was admitted to probate by the Court of First Instance of the city of Manila on the 3rd day of February, 1906, and letters of administration with the will annexed were issued to Benito Sy Conbieng, the defendant in this case. On the 4th of June, 1909, upon the application of the plaintiff in this case, a committee was appointed by the Court of First Instance of the city of Manila to appraise the estate of the said Pio de la Guardia Barretto, deceased, and to hear claims presented against his estate. Thereafter and within the time prescribed by law the plaintiff herein presented to said committee a claim for the sum of P30,000 "based upon the fact that the claim for the larger amount had been allowed in favor of the estate of said Margarita Jose Sempco, deceased;" and based upon the further fact "that the Court of First Instance had ordered the said Doroteo Velasco, as administrator of the estate of said Mariano Ocampo Lao Sempco, deceased, to pay the said claim if there were funds sufficient to make such payment, but that it has not been paid by the said Doroteo Velasco, or any part thereof," The claim so presented against the estate of Pio de la Guardia Barretto, deceased, was disallowed by the committee thereof. The plaintiff herein within the time allowed by law appealed to the Court of First Instance of the city of Manila from the order of the committee disallowing said claim. It is disputed in the case that all of the claims against the estate of Mariano Ocampo were fully paid and satisfied at the time of the partition of said estate, with the exception of the alleged claim arising by virtue of his having been a surety of the default Palanca. It nowhere appears in the evidence or the record exactly when this claim arose it may be inferred from the time of presentation in 1909, and we have no means of determining whether the defalcation represented by the said claim occurred before or after the substitution of sureties herefore referred to.

Upon these facts it was contended by counsel for plaintiff that the judgment should be rendered in his favor for the sum of P30,000, with costs, while counsel of defendant contended that upon said facts judgment should be rendered in favor of defendant, dismissing the complaint, with costs. The court having heard the evidence and the arguments of counsel, rendered judgment in favor of the defendant and against the plaintiff, dismissing the complaint upon merits, without costs. This appeal is from that judgment. We are of the opinion that the judgment must be affirmed. We base our affirmance upon the ground that Doroteo Velasco, for whom the deceased Pio de la Guardia Barretto was surety, would not have been liable himself had this action been commenced against him. If the principal is not liable upon the obligation, the surety cannot be. At the head of the law of administration of the Philippine Islands stands sections 596 and 597 of the Code of Civil Procedure. They are as follows: SEC. 596. Settlement of intestate estates, without legal proceedings, in certain cases. Whatever all the heirs of a deceased person are of lawful age and legal capacity, and their are no debts due from the intestate estate, or all the debts have been paid by the heirs, the heirs may, by a family council as shown under Spanish law, or by agreement between themselves, duly executed in writing, apportion and divide the estate among themselves, as they may see fit, without proceedings in court. SEC. 597. In such case distributees liable for debts. But if it shall appear, at any time within two years after such settlement and distribution of the estate, that there are debts outstanding against the estate which have not been paid, any creditor may compel the settlement of the estate in the courts in the manner hereinafter provided, unless his debt shall be paid, with interest; and the administrator appointed by the court may recover the assets of the estate from those who have received them, for the purpose of paying the debts; and the real estate belonging to the deceased shall remain charged with the liability to creditors for the full period of two years after such distribution, notwithstanding any transfers thereof that may have been made. These sections provide for the voluntary division of the whole property of the decedent without proceedings in court. The provisions which they contain are extremely important. The wisdom which underlies them is apparent. It is the undisputed policy of every people which maintains the principle of private
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ownership of property that he who owns a thing shall not be deprived of its possession or use except for the most urgent and imperative reason and then only so long as is necessary to make the rights which underlie those reasons effective. It is a principle of universal acceptance which declares that one has the instant right to occupy and use that which he owns, and it is only in the presence of reasons of the strongest and most urgent nature that that principle is prevented from accomplishing the purpose which underlies it. The force which gave birth to this stern and imperious principle is the same force which destroyed the feudal despotism and created the democracy of private owners. These provisions should, therefore, be given the most liberal construction so that the intent of the framers may be fully carried out. They should not be straitened or narrowed but should rather be given that wideness and fullness of application without which they cannot produce their most beneficial effects. Standing, as we have said, at the head of the law of administration of these Islands, they are the first provisions to which our attention is directed in seeking a legal method for the division and distribution of the property of deceased persons. They are thus made prominent. And justly so. The purpose which underlies them, as we have already intimated, is to put into one's hands the property which belongs to him not only at the earliest possible moment but also with the least possible expense. By permitting the partition and division without proceedings in court no time is lost and substantially all expense and waste are saved. This is as it should be. The State fails wretchedly in its duty to its citizens if the machinery furnished by it for the division and distribution of the property of a decedent is no cumbersome, unwidely and expensive that a considerable portion of the estate is absorbed in the process of such division. Where administration is necessary, it ought to be accomplished quickly and at very small expense; and a system which consumes any considerable portion of the property which it was designed to distribute is a failure. It being undoubted that the removal of property from the possession of its owner and its deposit in the hands of another for administration is a suspension of some of its most important rights of property and is attended with an expense sometimes entirely useless and unnecessary, such procedure should be avoided whenever and wherever possible. In the case at the bar we are of the opinion that, under the broad and liberal policy which we must adopt in the interpretation and application of the provisions referred to, the decision of the property of Mariano Ocampo, deceased, in the form, in the manner and for the purposes expressed, falls within the provisions of said sections and may be termed, therefore, and we hold it to be, a partition of the property of a decedent without legal proceedings within the meaning of those

sections. The fact of the prior appointment of an administrator and the filing of an inventory before such partition is of no consequence so far as the right of the owners to partition is concerned. The only requisite for such petition prescribed by the law is that "there are no debts . . . or all the debts have been paid by the heirs." When the condition is fulfilled the partition can take place, no matter what stage the administration may have reached. By this it is, of course, not meant that the partition after the appointment of an administrator will interfere with the rights acquired by third person dealing with said administrator within the limits of his authority and prior to the partition; nor that the administrator can be deprived of the property of which he is legally in possession without proper proceedings and the consent of the court. As we have already indicated, the basis of the liability of a surety on an administrators' bond is the fault or failure of the principal. The liability of the principal precedes that of the surety. If Velasco incurred no liability, then his surety incurred none. The question that naturally suggests itself is, then, In what was Velasco at fault or in what did he fail? When the persons interested in the estate of Mariano Ocampo agreed voluntarily upon a partition and division of the property of said estate and the actual partition followed, the matter passed out of the hands of Velasco as administrator. The parties to the partition stood invoking their rights under section 596 and 597. Velasco was helpless. He was powerless to prevent the parties from taking the property to which they were entitled under the agreement, it being conceded that they were actually entitled thereto in law. Those sections were applicable to the situation and there was nothing that Velasco could do to prevent the estate from being divided according to their provisions. In giving his consent to the partition and in assisting the parties to obtain the approval of the court thereto he did no wrong. He simply aided in carrying out the provisions of the sections referred to. It is a universal principle that one who follows a law commits no fault, incurs no failure and wounds no rights. If one obeys the law he is free not only in person but in property. Observance of the law discharges obligations; it does not create them; and an obligation once discharged cannot be re-acted by the act of others in which the person as to whom it was discharged takes no part. The proceedings under sections referred to were, after the partition was actually made and the property duly turned over the administrator under the proper proceedings, a complete settlement of the estate of Mariano Ocampo, deceased, as it then stood, so far as the administrator was concerned. Nothing further needed to be done. Every duty which Velasco owed up to the time of the partition had been met. All debts presented or known had been paid. The court had given it approbation to the delivery of the property by the administrator to the partitioning parties. Every obligation which lay upon him had been removed. Nor could there arise against him any obligation in the future in relation to the same property. The instant that the partition occurred, in the form and manner stated, he stood stripped of all
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responsibility to the estate, to its creditors, to the heirs and to the court. He stood divested o every official duty and obligation, as fully as before his appointment as completely as if he had not been appointed at all. In law, therefore, he was no longer administrator with the will annexed of the estate of Mariano Ocampo, deceased. He was in effect, discharged. As to him the estate had been wiped out as a legal entity. It had ceased to exist. And, while at any time within two years after the partition the property, or a portion thereof, then in the possession of the partitioning persons could have been placed in administration upon the happening of certain events, it would not have been the same estate that had been represented by Velasco, nor would Velasco have been the administrator of the estate by virtue of his appointment in the old. It would have been necessary for the court, upon the proper application setting forth the conditions prescribed by the sections, to appoint another administrator for the purposes specified therein. It might have been Velasco, if he would have accepted the appointment, or it might have been another. The point is that it would have been necessary to appoint a new administrator just as if one had not been named before. The new administrator would have had new duties, some of which would have been quite different from those of the administrator appointed originally. He would have had different sureties, who would have found themselves to different obligations. That on the partition under said section the estate was, in this case, completely wiped out and the administrator as completely discharged cannot be doubted for the following reasons: 1. The whole estate was, by virtue of these sections, taken from the administrator and turned over to the partitioning persons. No security was required or given for its safekeeping or return. 2. The persons to whom the estate was thus turned over became absolute owners of the same, subject to be devastated, wholly or only partly, on the happening of certain events and the taking of certain proceedings thereon. But even such divestiture could not have been avoided by the payment by the parties, or any of them, of the debt which was the moving cause thereof. From these premises it is the merest conclusion to say that the decedent's estate was merged in their partitioning parties; and this no matter whether the partition occurred before or after the appointment of an administrator. When one has been named to perform certain acts in relation to a given thing, and before said acts have been begun, or, having been begun, are completed, the appointing power has placed the thing upon which those acts were to operate wholly beyond the

possession, jurisdiction and control of the one so appointed, there is a complete revocation of such appointment, so far as all subsequent acts are concerned. An administrator cannot be held to any accountability for property over which he has absolutely no power or jurisdiction and in which he has not the slightest legal interest. The thing on which he was appointed to operate having been withdrawn wholly beyond his ken by the very power (the law) which appointed him, there is a complete revocation of the appointment. Moreover, the sureties of an administrator so appointed can not be held liable for property which by force of law has been taken from the principal and its ownership and control turned over to others. Their obligation is that their principal shall obey the law in the handling and distribution of the estate. Their obligation is discharged when the estate is legally turned over to those entitled thereto. The law requires the principal to turn it over to those who bring themselves within the provisions of section 596. Having turned over the whole estate under the compelling power of the law, his obligation ceased. The responsibility of the sureties ceased at the same time. Without their consent another obligation could not be imposed upon them in relation to the same principal, and the same property, or apart thereof, especially after the lapse of two years. Their undertaking was that their principal should discharge one obligation, not two. It requires no argument to demonstrate that the duties and obligations imposed upon an administrator appointed under section 597 might and probably would be different in many respects from those of an administrator appointed in the first instance; and that, therefore, the obligation of his sureties would not be the same as that of the sureties of the administrator appointed originally. The administration contemplated by section 597 is a new administration and one entirely apart from any other administration theretofore had. This section requires the appointment of a new administrator, with a new undertaking. The administration under the section is distinct and separate from any administration which may have been in progress at the time of the partition and division under section 596. This is clear for the following reasons: After the partition and division provided for in sections 596 and 597 have been fully consummated, no further administration of the estate can be had unless there occur the following requisites: 1. There must have been discovered a claim against the estate "within two years after such settlement and distribution of estate."

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2. The creditor holding the claim must be the person who moves the court for the appointment of an administrator. If those requisites are lacking, there can be no administration. When one fails the right too such administration does not arise and any person intersted in the estate may oppose any effort to administer under such circumstances. These requisites combined are that and that alone which give to the administrator when appointed the right to recover the assets from the persons who received them on the a partition. Indeed, if these requisites are lacking no administrator can lawfully be appointed, and, if improperly appointed, he fails of legal power to maintain an action to recover the assets in the hands of those among whom they have partitioned; in other words, he is powerless to administer. If these requisites fail, then the real estate in the hands either of the persons among whom it has been partitioned or of their assignees is free from the lien created by section 597 and any attempt to enforce such lien can be successfully opposed by any person interested in such property. The appointment of an administrator without the concurrence of these requisites is without warrant of law and the appointee is powerless to perform any act of administration. The statute must be strictly complied with in every essential before it operates. Every essential requirements must be fulfilled before it will be permitted that a partition which has the clear sanction of the law and which is strictly in accord with the public policy of the estate shall be set aside and destroyed with all the evil consequences thereby entailed. It is necessary deduction from the provisions of the sections mentioned that the appointment of an administrator ought not to be permitted, even when the requisites above mentioned occur, unless the heirs or the persons among whom the property was partitioned have been given an opportunity to be heard on that application. It would be extremely unusual to proceed to the appointment of an administrator under section 597, by virtue of a debt which had been discovered after the partition and division, without giving the heirs an opportunity to avoid such administration by the payment of the debt, it being kept in view that the object of the law in originally giving the right to pay the debts and having partition without proceedings in court was to avoid that every administration. Such a proceeding would be unusual and irrational. Such a course would be in direct opposition to the purposes which animated the provisions authorizing the original partition. (1) In the case at bar no debt was discovered during the prescribed period. It was nearly four years after the partition of the estate and the taking possession by the heirs of their respective portions before it was even discovered that Palanca had been guilty of converting the property of the

estate to his own use; and, so far as the records shows, it was nearly five years before the alleged claim against the estate of Mariano Ocampo was fixed. (2) No creditor made his application. The requirements of section 597 not having been met, there could be no administration under section. Therefore, the appointment of commissioners for the hearing of the claim against the estate of Mariano Ocampo presented by the plaintiff in this case was an appointment without warrant or authority of law. It was appointment in respect to an estate that did not exist and in relation to an administration that had never been inaugurated. Under section 597 the commencement of the administration is the application of the creditor and the appointment of the administrator pursuant to such application. Without such appointment there is no administration. As we have before stated, when the property was partitioned a described heretofore, the estate, as such, ceased to exist and the administration thereof by Doroteo Velasco was wiped out. There was no administrator to carry on the administration. By operation of the law the estate had been passed on the heirs who had become the absolute owners of it. They were subject to the orders of the old administrator and they held rights inferior to no one. To be sure, as we have already stated, those rights might be modified to a certain extent by the happening of subsequent events; but until those events transpired their rights were absolute. Those conditions never having been met, a fact admitted by both parties in the case at bar, there was absolutely no estate at all, much less one in the process of administration, at the time the commissioners were appointed to her the claim for P30,000 presented against the estate of Mariano Ocampo, deceased, by the plaintiff herein. Add to this the fact that there was no administrator of said estate in extense at the time, and we have before us the absurdity of the appointment of the commissioners to report on a claim against an estate which did not exist and under the direction of an administrator that had never been appointed. The necessary conclusion is that the appointment of commissioners to hear the claim above referred to was beyond the powers of the court and was without jurisdiction. The finding of the commissioners had no force or effect. It gave no right against the estate and none against the so-called administrator. It must be remembered that it is only debts discovered within the prescribed period that can be made the reason for an administration of the estate subsequent to its partition. The necessary result is t hat a debt not discovered within that period cannot be made the reason for an administration of the estate. The debt in the case
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at bar having first discovered more than four years after the partition of the estate of Mariano Ocampo, deceased, an administrator, even though appointed under section 57, would not no authority in law, over the objection of one interested, to pay the debt in question or to maintain an action or other proceeding for the recovery of property for that purpose. This section creates a statute of limitations which deprives all debts which are not discovered within the prescribed time of the power of requiring an administration of the estate. The administration of the estate after the partition under the law has been accomplished depends upon the discovery of the debt "at any time within two years after such settlement and distribution of the estate." The law does not operate unless that discovery is made within the time prescribed. We have not overlooked the contention that at the time this partition took place there was a contingent claim against the estate partitioned, namely, the claim which would arise on the contingency that the administrator for whom Mariano Ocampo was surety might default or otherwise fail to perform his duties thus rendering Mariano Ocampo liable on his bond; and that contingent claim, being one expressly recognized by sections 746 to 749 of the Code of Civil Procedure as a claim entirely proper to present, no partition of this estate under section 596 and 597 was legally possible until such claim was provided for by the petitioning parties. This contention goes upon the assumption that a partition under the sections of the Code of Civil Procedure so often referred to is void unless every debt is paid or provided for by the petitioning parties, and may therefore be entirely disregarded by the creditor holding a claim either unpaid or provided for. We do not believe that this assumption is warranted. In the first place, we must remember that the partition proceedings in question are proceedings out of court. Consequently there is no prescribed method of ascertaining and settling claims. The appointment of commissioners, the publication of notice to creditors, and all the other proceedings necessary in cases of administration in court are not required in partition out of court. The law is silent as to how the claims are to be ascertained, presented and determined. We must assume, therefore, that the method of ascertaining them and determining their validity was left to the good sense and sound judgment of the persons concerned. Usually no difficulty will be experienced in solving the problem presented by this conclusion. It is obvious that creditors always know who owes them and that debtors generally know whom they owe. It is equally obvious that, generally speaking, a creditor is one of the first to learn of the death of the debtor, and that heirs of the latter are the first to begin to calculate how much of his property they are to receive. This cannot be known until the debts are determined. The heirs know they cannot escape payment of the debts. A surreptitious division behind the backs of the creditors would not avail as the latter have two years thereafter in which to throw at least a portion of the estate into administration and thereby nullify the attempt to overreach them. Even the transfer by the partitioning

persons of the property received on the partition to third persons would not profit them, inasmuch as the consideration received on such transfer would, if necessary, be subject to seizure to pay the debt presented and the real estate would go into the hands of the vendees charged with the lien of said debt. The method of ascertaining claims against the defendant's estate not being prescribed, it is apparent that no objection to a partition can be urged by a creditor whose claim has not been paid, due to the faulty method adopted by the partitioning parties to ascertain claims, or, even, the absence of any effort at all to ascertain them. In the second place, it must be on served that express provisions is made by sections 596 and 597 for the payment of a claim discovered by them or presented after the partition. That is one of the main provisions. It is a necessary deduction, therefore, that it was not the intention of the law to pronounce the partition void of no effect simply because not all of the debts were paid before the partition was made. The fact of non payment cannot, then, because by the creditor as a reason for attacking the partition directly; that is, by asserting that, inasmuch as a payment of all the debts is a condition precedent to the right of partition, such partition cannot legally and validly take place while a debt is outstanding. While a partition manifestly fraudulent in inception and result might possibly be attacked directly by an action to set aside, a question which we do not discuss or decide, the manner of attacking the partition prescribed by the law is the one, generally speaking, preferably to be followed; and that is to throw into administration so much of the estate as is necessary to pay the outstanding claim. The method, though indirect, accomplishes a better result than a direct attack. The latter, by destroying the validity of the partition, would throw the whole situation into confusion and uncertainty, something always to be avoided. The former does not produce that result. Where there is no fraud, and possibly where there is, a direct attack on the partition is impossible under the provisions under discussion. A claim discovered and presented within the two years serves not to destroy, primarily, the partition. It does not even permit the whole estate to be thrown into administration. Only such portion as is necessary to pay the discovered debt can be administered. This is apparent when it is observed that on such administration the administrator is authorized to recover only the amount of property necessary to pay the debt presented, leaving the partitioning parties in undisturbed possession of the remainder. Moreover, the partitioning parties may still pay the debt and preserve undisturbed the partition in all it parts and thus assure and maintain the rights of the parties thereunder. The mere fact, therefore, that a creditor was not paid before the partition took place furnishes no ground for a revocation of the partition. It simply provides a fact which he may urge as a reason for the
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appointment of an administrator and the consequent administration of so much of the estate as may be necessary to pay the debt discovered. But, as already seen, in order that it be a reason for such appointment and administration, the claim must be presented within two years from the date of the partition and distribution. Summarizing, we have seen that lack of opportunity, either by want of notice or otherwise, and the consequent failure to present a claim before partition, is, under the sections we are discussing, of no consequence whatever in so far as the validity of the partition is concerned. We have also seen that the fact that there were debts outstanding and unpaid at the time the partition took place is of no importance so far as the validity of the partition is concerned, leaving out account the question of fraud to which we have already adverted and left undecided. We have also seen that the fact such claim exists and is valid and subsistent against the estate is of no consequence whatever with respect to the right of its holder to require an administration of the estate unless such claim is discovered and presented within two years. The fact that the claim in the case at bar was, during a certain period, a contingent one is of no importance. The sections under discussion make no distinction between claims. The creditor himself is not without duties. In the case at bar it was five years after the petition before the alleged creditor made any attempt whatsoever to "discover" or present his claim. He knew of the death of Ocampo very soon after it occurred. He knew that it was among the possibilities that Ocampo's estate might be called upon to respond for the failure of Palanca to perform his duty as administrator. It was his duty to see to it that he would be protected in that event. Nevertheless he permitted the estate of Ocampo to be partitioned and distributed without protest and without the presentation of his contingent claim, and sat quiet and passive for nearly five years thereafter knowing that it was very probable that the property of the estate was being consumed, incumbered, and transferred by the persons among whom it had been distributed. The judgment appealed from is hereby affirmed, without special finding as to costs.

Arellano, C.J., Torres, Mapa and Johnson, Carson and Trent, JJ., concur as to the dispositive part.

JJ.,

concur.

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REOPENING BY INTERVENTION WITHIN REGLEMENTARY PERIOD

xxx

xxx

xxx

G.R. No. L-47475

May 6, 1942

DONATO LAJOM, plaintiff-appellant, vs. JOSE P. VIOLA, RAFAEL VIOLA, and SILVIO VIOLA, defendants-appellees. Simeon P. Mangaliman for appellant. Adolfo A. Scheerer for appellees. BOCOBO, J.: This is an appeal from an order of the Court of First Instance of Nueva Ecija, sustaining the defendants' demurrer to the plaintiff's amended complaint and dismissing the case. On March 17, 1939, the plaintiff-appellant, Donato Lajom, filed a complaint, which amended on May 16, 1939, praying, among other things, that he be declared a natural child of the late Dr. Maximo Viola and therefore a co-heir of the defendand-appellees, Jose P. Viola, Rafael Viola, and Silvio Viola, legitimate children of said Dr. Maximo Viola; and that after collation, payment of debts and accounting of fruits, a new partition be ordered, adjudicating one-seventh of the estate to the plaintiff and two-sevenths to each of the defendants. Among the allegations of the complaint are the following: xxx xxx xxx

6. That a testate proceeding was instituted in the Court of First Instance of Bulacan, covering the estate left by the said Dr. Maximo Viola, registered as civil case No. 4741 of said Court; and this special proceedings was already closed on March 17, 1937, as can be seen in a copy of the order of said Court, hereto attached, marked as Annex D, and is being made an integral part hereof; 7. That the plaintiff did not intervene during the pendency of the special proceeding above mentioned, as he expected that his brothers, the herein defendants, would disclose and tell the truth to the Court that they have a natural brother whom they knew to be living, and whose address was well known to them; a brother who should also participate in the estate of their deceased father; and besides, the herein defendants promised to the herein plaintiff that they would give him his lawful share in the estate of their father; 8. That the herein defendants willfully, deliberately and fraudulently concealed the truth from the Court that they have a natural brother who should also participate in the estate of their deceased father, with the single and avowed intention to deprive deliberately and fraudulently the herein plaintiff of his lawful participation in the estate in question; 9. That the herein defendants partitioned among themselves the estate in question, as can be seen in their "Convenio de Patricion y Adjudicacion," dated October 25, 1935, a copy of which is hereto attached, marked as Annex E, and is made an intergral part hereof, and since then up to the present time, each of the herein defendants has been occupying, possessing and enjoying his corresponding share, in accordance with the said "Convenio de Particion y Adjudicacion"; while the properties alleged to be paraphernal properties of the late Juana Roura in said "Convenio de Particion y Adjudicacion" are not paraphernal but conjugal properties of the late spouses, Dr. Maximo Viola and Doa Juana Roura, acquired during their martial life; xxx xxx xxx

2. That the plaintiff is a natural child, impliedly recognized and tacitly acknowledged by his father, the late Dr. Maximo Viola, begotten by the deceased Filomena Lajom and born in 1882 when both, Maximo Viola and Filomena Lajom, were free and could have contracted marriage; xxx xxx xxx

4. That from early childhood until before the year 1889, and even thereafter, the plaintiff had been living with his father, the late Dr. Maximo Viola, and had been enjoying the status of a son, not only within the family circle but also publicly, on account of the acts of his said father;

18. That the plaintiff had demanded of the defendants that they give to him his lawful participation of the estate in question, as well as of the products therefrom, in order not only to comply with their promise but
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also in order to comply with the law; but the herein defendants have failed to give to the herein plaintiff his lawful share of the estate in questions, nor of the products or fruits therefrom; and the said defendants continue to fail to give to him his legal portion of the said estate and the fruits or products therefrom, of which the plaintiff is entitled to one-seventh (1/7) while each of the three defendants is entitled to two-sevenths (2/7) of the same. By an order dated July 31, 1939, the Court of First Instance of Nueva Ecija sustained the defendants' demurrer and dismissed the case. The Court held that the complaint did not state facts sufficient to constitute a cause of action because its allegation called for the exercise of the probate jurisdiction of the court and consequently did not constitute a cause of action in an ordinary civil case like the present. It was further held that the court had no jurisdiction because there was no allegation that the late Dr. Maximo Viola was, at the time of his death, a resident of Nueva Ecija; on the contrary, the complaint showed that the will of the deceased had already been probated in the Court of First Instance of Bulacan and that court having first taken cognizance of the settlement of the estate, the Court of First Instance of Nueva Ecija could no longer assume jurisdiction over the same case. The two grounds for sustaining the demurrer to the complaint will now be discussed. First, as to the jurisdiction of the Court of First Instance of Nueva Ecija. The complaint alleges that the plaintiff and one of the defendants, Jose P. Viola, are residents of Nueva Ecija; and from the complaint it appears that 16 of the parcels of land belonging to the estate are situated in the Province of Nueva Ecija, while 3 lots are in the Province of Isabela, 1 in the City of Baguio, 6 in Manila, and the rest (46 parcels) are found in the Province of Bulacan. Paragraphs 7, 8, and 18 of the complaint allege a violation of contract, a breach of trust, and therefore the case may be instituted in the Province of Nueva Ecija. Paragraph 7 alleges "the herein defendants promised to the herein plaintiff that they would give him his lawful share in the estate of their father." Paragraph 8 states that "the herein defendants willfully, deliberately and fraudulently concealed from the Court the truth that they have a natural brother who should participate in the estate of their deceased father, with the single and avowed intention to deprive deliberately and fraudulently the herein plaintiff of his lawful participation in the estate in question." And paragraph 18 asserts that "the plaintiff herein had demanded of the defendants that they give to him his lawful participation of the estate question, as of the products therefrom, in order not only to comply with their promise but also in order to comply with the law; but the herein defendants have failed to give the

herein plaintiff his lawful share of the estate in question." These allegations clearly denounce a breach of trust which, if proved at the trial, the courts could not for a moment countenance. Regardless of any legal title to the plaintiff's share, declared by the Court of First Instance of Bulacan in favor of the defendants in the testate proceedings, high considerations of equity vehemently demand that the defendants shall not take advantage of such legal title, obtained by them through a betrayal of confidence placed in them by the plaintiff. So far as plaintiff's share in the inheritance is concerned, the defendants are trustees for the plaintiff, who may bring an action in Nueva Ecija for breach of trust. (Sec. 337, Act No. 190, and sec. 1, Rule 5 of the Rules of Court.) If this promise should be shown by proper evidence, its enforcement would not necessitate the revision or reconsideration of the order of the Court of First Instance of Bulacan approving the partition, because leaving that court order as it is the trust can and should be carried out through conveyance to the plaintiff of his share, by the defendants out of their respective participations in virtue of the partition. The case of Severino vs. Severino (44 Phil. 343 [year 1923]) has declared certain principles that may be applied in the case at bar. In that case, the defendant Guillermo Severino, who was agent of Melecio Severino, had obtained a Torrens title in his own name to four parcels of land belonging to the principal. More than one year having elapsed since the entry of the final decree adjudicating the lands to the defendant, the question was whether the defendant could be compelled to convey the lands to the estate of the deceased principal, Melecio Severino. This Court maintained the affirmative holding in part: In the case of Felix vs. Patrick (145 U. S. 317), the United States Supreme Court, after examining the authorities, said: "The substance of these authorities is that, wherever a person obtains the legal title to land by any artifice or concealment, or by making use of facilities intended for the benefit of another a court of equity will impress upon the land so held by him a trust in favor of the party who is justly entitled to them and will order the trust executed by decreeing their conveyance to the party in whose favor the trust was created." (Citing Bank of Metropolis vs. Guttschlick, 14 Pet. 19, 31; Moses vs. Murgatroyd, 1 Johns, Ch. 119; Cumberland vs. Codrington, 3 Johns, Ch. 229, 261; Neilson vs. Blight, 1 Johns. Cas. 205; Weston vs. Barker, 12 Johns. 276.)

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The same doctrine had also been adopted in the Philippines. In the case of Uy Aloc vs. Cho Jan Ling (19 Phil. 202), the facts are stated by the court as follows: "From the facts proven at the trial it appears that a number of Chinese merchants raised a fund by voluntary subscription with which they purchased a valuable tract of land and erected a large building to be used as a sort of clubhouse for the mutual benefit of the subscribers to the fund. The subscribers organized themselves into an irregular association, which had no regular articles of association, and was not incorporated or registered in the commercial registry or elsewhere. The association not having any existence as a legal entity, it was agreed to have the title to the property placed in the name of one of the members, the defendant, Cho Jan Ling, who on his part accepted the trust, and agreed to hold the property as the agent of the members of the association. After the club building was completed with the funds of the members of the association, Cho Jan Ling collected some P25,000 in rents for which he failed and refused to account, and upon proceedings being instituted to compel him to do so, he set up title in himself to the club property as well as to the rents accruing therefrom, falsely alleging that he had bought the real estate and constructed the building with his own funds, and denying the claims of the members of the association that it was their fund which had been used for that purposes." The decree of the court provided, among other things, for the conveyance of the clubhouse and the land on which it stood from the defendant, Cho Jan Ling, in whose name it was registered, to the members of the association. In affirming the decree this court said: "In the case at bar the legal title of the holder of the registered title is not questioned; it is admitted that the members of the association voluntarily obtained the inscription in the name of Cho Jan Ling, and that they had no right to have that inscription cancelled; they do not seek such cancellation, and on the contrary they allege and prove that the duly registered legal title to the property is in Cho Jan Ling, but they maitain, and we think that they rightly maintain, that he holds it under an obligation, both express an implied, to deal with it exclusively for the benefit of the members of the association, and subject to their will."

Torrens titles being based on judicial decrees there is, of course, a strong presumption in favor of their regularity or validity, and in order to maintain an action such as the present the proof as to the fiduciary relation of the parties and of the breach of trust must be clear and convincing. Such proof is, as we have seen, not lacking in his case. But once the relation and the breach of trust on the part of the fiduciary is thus established, there is no reason, neither practical nor legal, why he should not be compelled to make such reparation as may lie within his power for the injury caused by his wrong, and as long as the land stands registered in the name of the party who is guilty of the breach of trust and no rights of innocent third parties are adversely affected, there can be no reason why such reparation should not, in the proper case, take the form of a conveyance or transfer of the title to the cestui que trust. No reasons of public policy demand that a person guilty of fraud or breach of trust be permitted to use his certificate of title as a shield against the consequences of his own wrong. In the present case, the defendants partitioned the estate among themselves in the administration proceedings before the Court of First Instance of Bulacan. Even granting that the partition was binding against the whole world (though it will be shown later that it was not), nevertheless it could not have a more puissant finality than a decree of title under the Torrens system. Upon the authority of the Severino vs. Severino, the legal title obtained by the defendants to the plaintiff's share in the estate, in the partition approved by the Court of First Instance of Bulacan, must yield to the superior and inviolate rights equity of the plaintiff, who abstained from taking part in that partition because of the promise made to him by the defendants that they would deliver to him lawful share as an acknowledged natural child. A posssible objection to the promise of the defendants to give the plaintiff his share in the estate as an acknowledged natural child is that such agreement may run counter to article 1814, Civil Code, which reads: "No se puede transigir sobre el estado civil de las personas, ni sobre las cuestiones matrimoniales, ni sobre alimentos futuros" (There can be no compromise over the civil status of persons, or over matrimonial questions, or over future support). However, it does not appear from the complaint that the defendants ever impugned or denied the plaintiff's status as an acknowledged natural child; on the contrary, according to the complaint, the defendants admitted such status by promising to give the plaintiff his lawful share in the estate of the father. There having been, in accordance with the allegations in the complaint, no controversy over the condition of the plaintiff as acknowledged natural child, the agreement between the plaintiff and defendants
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alleged in par. 7 of the complaint, if shown at the trial, is not a compromise at all, and is not frowned upon by the legislator in article 1814 of the Civil Code. Furthermore, article 1965 of the Civil Code, which has been held by this court to be still in force, in spite of secs. 43 et seq. of the Code of Civil Procedure (Bargayo vs. Camumot, 40 Phil., 857 872-3) provides as follows: "No prescribe, entre coheredores, condueos o propietarios de fincas colindantes la accion para pedir la particion de la herencia, la division de la cosa cumon o el deslinde de las propiedades contiguas." (Among coheirs, co-owners or proprietors of adjoining lands, the action to ask for the partition of the inheritance, the division of the thing owned in common or the fixing of boundaries of adjoining lands, does not prescribe.) The defendants having, according to the complaint, promised to give the plaintiff his share in the inheritance, his right to demand partition of the inheritance does not prescribe, in view of said article 1965. In the case of Bargayo vs. Camumot, just cited, the defendant, Jorge Camumot, an uncle of the plaintiffs, had been in possession for many years, of the whole estate in question, which had belonged to the deceased grandfather of the plaintiffs and father of the defendant. This court held that the defendant had not acquired the property by prescription under section 41 of the Code of Civil Procedure because his possession had not been hostile and adverse, and that therefore, the plaintiffs should be awarded one half of the estate This court said: Taking the evidence together, it does not appear that the defendant's act upon the land had been of real ouster, i e., that if among strangers said acts may be sufficient to characterize his possession as adverse, such is not the case in the present suit wherein we are dealing with prescription among coheirs. For it appears that when called upon by the plaintiffs to bring about the partition, the defendant did not deny that the plaintiffs had any right to share in the inheritance. When Basilio Bargayo was asked why they did not institute this action before, he replied that it was because they considered the defendant as their father, since he was their uncle, and they expected him to give them their respective shares of the inheritance, and that when they first asked him to make the partition, he (defendant) asked them a postponement, saying that they should leave him the in the possession of the land in order to compensate himself from what he has spent for their grandfather when the latter was, and died, under his (defendant's) care. All of these show in some way that defendant's possession was not adverse, i. e., hostile or repugnant to the plaintiff's right. The same witness, who is once of the plaintiffs, only says that whenever they would ask him for the partition, the defendant did not

pay any attention to them, i. e., he limited himself in laying aside the fullfiment of the partition, a conduct which can be explained in various ways. And it is probable that said conduct was simply tolerated by the plaintiffs on account of his being their uncle, and they never thought that by said conduct the defendant inheritance, not that the defendant would have so intended. In any way dealing as we do here with the acquisition of a thing by prescription, the evidence must be so clear and conclusive as to established said prescription without any shadow of doubt. This does not happen in the instant case, for the defendant did not even try to proven that he has expressly or impliedly refused plaintiff's right over an aliquot part of the inheritance. But regardless of the defendants' under taking referred to, the Court of First Instance of Nueva Ecija had jurisdiction over the case because the complaint contains allegations which, if shown at the trial, would be sufficient to support and warrant an action for reivindiction of his right as a co-owner of the sixteen parcels of land situated in the Province of Nueva Ecija. From the moment of the death of the late Dr. Maximo Viola on September 3, 1933, succession was opened (art. 657, Civil Code.) The possession of his whole estate was transmitted to all his heirs (including the plaintiff) without interruption and from the moment of his death. (Article 440, Civil Code.) The plaintiff's dominion over his share of the estate was therefore automically and by operation of law vested in him upon the death of his natural father, subject of course to the lien of the creditors of the decedent. This being true it is difficult to ignore the right of the plaintiff to recover his charge in the lands in Nueva Ecija, (the debts of the estate having been adjusted before the partition approved by the Court of First Instance of Bulacan) by an action of reivindication because of the defendant's refusal to deliver said share to him. In the case of Ramirez vs. Gmur (42 Phil. 855, 869), this court held: The law in force in the Philippine Islands regarding the distribution of estates of deceased persons is to be found in section 753 et seq., of the Code of Civil Procedure. In general terms the law is that after the payment of the debts and expenses of administration the court shall distribute the residue of the estate among the persons who are entitled to receive it, whether by the terms of the will or by operation of law. It will be noted that while the law (sec. 754) provides that the order of distribution may be had upon the application of the executor or administrator, or of a person interested in the estate, no provision is made for notice, by publication or otherwise, of such application. The proceeding, therefore, is to all intents and purposes ex parte. As will be seen our law is every vague and
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incomplete; and certainly it cannot be held that a purely ex parte proceeding, had without notice by personal service or by publication, by which the court undertake to distribute the property of deceased persons, can be conclusive upon minor heirs who are not represented therein. Section 41 of the Code of Civil Procedure provides that ten years actual adverse possession by "occupancy grant, descent, or otherwise" shall vest title in the possessor. This would indicate that a decree of distribution under which one may be placed in possession of land acquired by descent, is not in itself conclusive, and that, as held in Layre vs. Pasco (5 Rob [La.], 9), the action of revindication may be brought by the heir against the persons put in possession by decree of the probate court at any time within a period allowed by the general statute of limitations. In the case just cited, this court upheld two propositions: (1) that a judicial partition in probate proceedings does not bind the heirs who were not parties thereto; and (2) that in such cases, the heir who has been deprived of his share in the estate may bring an action for reivindication with the prescriptive period against the persons put in possession by the probate court. Upon the first point, the following quotation from Corpus Juris (vol. 47, pp. 434 and 435) would seem to be pertinent: Sec. 417. Persons concluded A judgment in partition is conclusive upon all persons having any interest who were made parties to the proceeding. xxx xxx xxx

With reference to the first assignment of error above noted, we are of the opinion, and so hold, that for the reason that the said Matea E. Rodriguez had not been made a party in the action for partition between the present defendants and the said Hilarion de la Cruz, interest in said lands was in no way prejudiced by the decision of the court in that cause. But, it may be said, the plaintiff knew of the probate proceedings in the Province of Bulacan, and is therefore bound thereby. However, it is alleged in the complaint and admitted by the demurrer, that he did not appear in those proceedings because of the defendant's promise to give him his share. On the second point, that is to say, that the aggrieved coheir may bring an action for reivindication within the prescriptive period, this court in the case of Ramirez vs. Gmur properly applied section 41 of the Code of Civil Procedure regarding acquisitive prescription after ten years of adverse possession by "occupancy, grant, descent or otherwise." In order words, that even after a decree of distribution, an action for recovery may be brought by the excluded heir within ten years. In Layre vs. Pasco (5 Rob. [La.] 9), cited by this court in Ramirez vs. Gmur, it was held: II. This action may be considered as petitory one, brought against a third possessor. The plaintiff must recover upon the strength of her title to the succession of her sister; and for that purpose, she must show that she is the natural sister of the deceased, and that the deceased left no lawful heir entitled to her inheritance. This has been done satisfactorily. The evidence establishes. that the defendant was put in possession of the estate, as testamentary heir, by a decree of the Court of Probates. It was, therefore, useless for the plaintiff to attempt to demand the possession of the property of the succession, since it had been delivered to the defendant, and the estate had ceased to be under the control and supervision of the Probate Court. Her application to the Court of Probates Court would have had no object, as that court was no longer possessed of any power over the succession, and, consequently, no order could have been rendered to take it out of the defendant's hands. The action of reivindication was left to the plaintiff, and we are not prepared to say, that previous to her instituting it, it was necessary that she should have been recognized as heir by the Probate Court. This requisite is only to be complied with, as long as the succession is under the supervision of the court by which the administrator, curator, or executor has been appointed, as it seems to us,
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Persons not parties The general rule is that persons not parties to the action or suit are not bound by the decree or judgment for partition and their rights cannot be adjudicated; but such a decree is not invalid as between the parties thereto, although it has been considered as erroneous. Among the persons held not to have been concluded by the decree or judgment, by reason of not having been made parties, are, besides owners of an undivided in the property, persons having a contigent remainder therein, a widow with a dower right, creditors having a lien on the property, and a person who had attached, on mesne process, the interest of one of the tenants in common. In Rodriguez vs. De la Cruz (8 Phil., 665, 667), this court said:

that after delivery to the heir who is apparently entitled thereto, it would be requiring a vain thing. Lex neminen cogit ad vana. xxx xxx xxx

With regard to the exception of jurisdiction: it was not insisted on by the defendant's counsel, and was properly overruled by the Judge, a quo. The rule is well established, that "when an action of reivindication is instituted by an heir at law, against the testamentary heir or universal legatee, who has been put in possession of the estate, and who sets up the will as his title to the property, District Courts are the proper tribunals in which such suits must be brought." (Roberts vs. Allier, 17 La. 15.) It would not be amiss, at this juncture, to bring into view section 196 of the Code of Civil Procedure (similar to sec. 12 of Rule 17 of the Rules of Court) and article 405 of the Civil Code. Section 196 of Act No. 190 provides: Section 196. Paramount rights and amicable partition not affected . Nothing herein contained shall be construed so as to injure, prejudice, defeat, or destroy the estate, right or title of any person claiming a tract of land, or any part thereof, by title under any other person, or by title paramount to the title of the joint tenants, tenants in common, or coparceners by whom partition may have been made. (emphasis supplied.) The plaintiff has a paramount title to his share in the estate. Article 405 of the Civil Code reads: La division de una cosa comun no prejudicara a tercero, el cual conservara los derechos de hipoteca, servidumbre u otros derechos reales que la pertenecieran antes de hacer la particion. (Emphasis supplied.) (The division of a thing owned in common shall not prejudice any third person, who shall preserve the rights of mortgage, easement or other real rights which might belong to him before the partition.) It is to be observed that ownership is the real right par excellence. If, as alleged in the complaint, the plaintiff is the owner of a share in the estate, then rights are shielded by article 405 of the Civil Code against any adverse or inimical effect of the partition already mentioned.

These safeguards established both by the Code of Civil Procedure and the Civil Code are sound in principle and farsighted in the protection of property rights. They are morally and juridically right because no partition, either by decree of court or by extrajudicial agreement, could add one iota or particle to the interest which the partitioners had during the joint possession. Partition is of the nature of a conveyance of ownership (Manresa's comment on article 400-406, Civil Code), and certainly none of the co-owners may convey to the others more than his own true right. Section 196 of Act No. 190 and article 405 of the Civil Code are also an effective guarranty of ownership because otherwise, it would be possible for usurpers to carry out their covetous designs either by deceiving the court or through the egregious mockey of a contract solemnized by the signature and seal of a notary public. Moreover, a judicial partition in probate proceedings is not final and conclusive, as shown by articles 1073, 1074, 1080 and 1081 of the Civil Code. 1073. Las particiones pueden rescindirse por las mismas causas que las obligaciones. 1074. Pordan tambien ser rescindidas las particiones por causa de lesion en mas de la cuarta parte, atendido el valor de las cosas cuando fueron adjudicadas. 1080. La particion hecha con pretericion de alguno de los herederos no se rescindira, a no ser que se pruebe que hubo mala fe o dolo por parte de los otros interesados; pero estos tendran la obligacion de pagar al preterido la parte que proporcionalmente le corresponda. 1081. La particion hecha con uno a quien se creyo heredero sin serio, sera nula. The above legal provisions section 196 of the Code of Civil Procedure, and articles 405, 1073, 1074, 1080 and 1081 of the Civil Code are material in this aspect of the present case, not because we believe the partition in the probate proceedings in Bulacan should be annulled or rescinded but because said partition not being of such definitive character as to stop all means of redress for a coheir who has been deprived of his lawful share, such coheir may still, within the prescriptive period, bring an action for reivindication in the province where any of the real property of the deceased may be situated. In this case, 16 of the lots belonging to the estate of the deceased Dr. Viola are located in the Province of Nueva Ecija where the present action was brought.
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Broad perspectives of which policy, which the lawmaker must have contemplated, would seem to reveal the wisdom of allowing a coheir the benefits of the law of prescription even after a partition, judicial or extrajudicial, has been had. Not infrequently, the heirs are living in different provinces, far from one another and far from the residence of the decedent. Some of them may not hear of the probate proceedings, or if they do, they may not have at the time either the means or the inclination to participate therein. Sometimes, one of the heirs, by cajolery, bluster or truculence succeeds in preventing a number of the coheirs from laying their just claims before the probate court. There are also instances where an heir, cut of a sense of self-reliance, does not care to show keen and active interest in the partition. In some cases, as it might have happened in the present one, a cohier, from delicacy or fitting pride does not want, at the time of the settlement of the estate, to appear in court as a natural child, and thus make himself the object of public pity or disdain and inconsiderately lift the veil which time has benignantly placed over the father's past social deviation. Why should it be presumed that the lawmaker did not respect this attitude of the child? It often occurs, likewise, that a child, out of reverence for the memory of the deceased, is loath to show eagerness to secure his share of the inheritance. Why should it be assumed that the legislator wanted to compel such a child to haggle and argue over sordid and material things when the heart-wounds from the death of the beloved father or mother still smart? To such a child, zealous alacrity to get one's share in the inheritance so soon after the death of the father or mother is akin to the sacrilegious avarice of those who, after the Crucifixion, parted and divided the garments. It is reasonable to suppose that the lawmaker did not deem such child's feelings worthy of deferential regard? The second main question is, Does the complaint state facts sufficient to constitute a cause of action? Paragraph 2 of the complaint reads thus: 2. That the plaintiff is a natural child, impliedly recognized and tacitly acknowledge by his father, the late Dr. Maximo Viola, begotten by the deceased Filomena Lajom, and born in 1882 when both, Maximo Viola and Filomena Lajom, were free and could have contracted marriage; Law 11 of Toro, promulgated in 1505, provides: Ordenamos y mandamos que entonces se digan ser los hijos naturales, cuando al tiempo que nacieren, o fueren concebidos, sus padres podian casar con sus madres justamente sin dispensacion. (We order and command that children shall be said to be natural when at the time they

are born, or conceived, their fathers could marry their mothers justly without dispensation.) The complaint does not allege that the parents were free to marry "each other" and "without dispensation." One who is prone to search for the "nice sharp quillets of the law" would consider these omissions in the complaint fatal because Law 11 of Toro requires that the children's "fathers could marry their mothers justly without dispensation" ("sus padres podian casar con sus madres justamente sin dispensacion"). In other words, a strict interpretation of the complaint would hold (1) that the parents might be free to marry others but not each other; and (2) that by omitting the words "without dispensation," the complaint contains no allegation that the parents were not so related as to require dispensation to get married to each other. For example, under Law 11 of Toro, if the parents are uncle and niece, the child is not natural because they need dispensation to marry each other. Law 11 of Toro is on this point different from the Civil Code in that under the latter (article 119) it is sufficient if the parents can marry each other "without dispensation," that is to say, according to the Civil Code, even if the parents are, for instance, uncle and niece, the child is natural if said parents have obtained dispensation to marry each other. But pleadings should be liberally construed with a view to substantial justice between the parties (sec. 106, Code of Civil Procedure and sec. 17, Rule 15 of the Rules of Court). Upon this principle the complaint is sufficient because the allegation that the parents "were free and could have contracted marriage" signifies that neither was married and that there was no impediment on account of relationship which would have required dispensation. In the case of Ramirez vs. Gmur (42 Phil., 855, 861-862), this court held: Relative to this presumption of the capacity of the parents to marry, the author Sanchez Roman makes the following comment: "Furthermore, viewing the conception of natural child in connection with two mutually interrelated circumstances, to wit, the freedom of the parents to inter-marry, with or without dispensation, at the time of the conception of the offspring stigmatized as natural, the first of those, or freedom to marry, is a point upon which there is, according to the jurisprudence of our former law, whose spirit is maintained in the Code, an affirmative presumption which places the burden of proving the contrary upon those who are interested in impugning the natural filiation." (Vol. 5, Derecho Civil, pp. 1018, 1019.)
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The Supreme Tribunal of Spain in its Sentence of October 11, 1882, declared that paternity having been proved, it is presumed that the parents were not disqualified to marry each other. This liberal interpretation of the complaint is the more compelling in this case because the status of the plaintiff as a natural child is to be determined in harmony with Law 11 of Toro, which was the least serve toward natural children in the history of Spanish legislation. The development of the law on this subject has had three periods; first, the Roman law viewpoint which was the most strict; second, the Laws of Toro which gave the largest measure of concessions to the natural child; and third, the Civil Code, which places greater limitations on the concept of natural children. (See "Hijos Naturales" by Victor Covian, Vol. XVII, Enciclopedia Juridica, p. 809; and "Comentario Historico, Critico y Juridico a las Leyes de Toro," by Joaquin Francisco Pacheco, pp. 136-141.) The Laws of Toro having been promulgated in 1505, their relatively liberal concept of natural children was the one which prevailed in the Philippines during practically the entire period of the Spanish regime. The complaint states that the plaintiff was born in 1882 when his parents were free to marry. This is sufficient because Law 11 of Toro requires the freedom of the parents at the time either of the conception or of the birth of the child, although according to the Civil Code this freedom to marry must exist at the time of the Child's conception (article 119). The complaint alleges that "the plaintiff is a natural child, impliedly recognized and tacitly acknowledged by his father." Under Law 11 of Toro, voluntary recognition of a natural child may be tacit while under the Civil Code (article 131) it must be in a record of birth, in a will or in any other public document. Finally, it is proper and pertinent to invoke the case of Larena and Larena vs. Rubio (43 Phil. 1017). Asuncion Larena, Maximiana Larena and Eustaquio Larena appeared in the proceedings for settlement of the estate of the deceased Demetrio Larena, alleging that they were his natural children and claimed the right to participate in the inheritance. The widow, Josefina Rubio viuda de Larena, by whom the deceased had had four legitimate children, opposed the petition. The lower court dismissed the petition, and Asuncion Larena appealed. The appellant was Demetrio Larena's natural daughter, born in 1880 when he and the mother were free and could have been married to each other. From early childhood she had been living with her father and enjoying the status of a daughter, not only within a family but also publicly on account of the acts of her father. This court reversed the order of the

lower court and declared the appellant as the natural daughter of the deceased with a right to a share in the estate, holding in part as follows; The lower court based its decision upon the fact that since the appellant had attained the age of majority in the year 1901, and her father having died in 1916, without any effort on her part previous to that time looking to her acknowledgment as a natural child, she had lost such right in view of article 137 of the Civil Code which requires that action for acknowledgment should be commenced during the lifetime of the father. This is an error. The Civil Code is not applicable to this case. The appellant was born and had enjoyed the status of a natural child by acts of acknowledgment of her father even before the said Code was put in force here. Under the law at that time (Law 11 of Toro), this tacit acknowledgment on the part of her father was itself sufficient to give the appellant the status of a natural child, and such acknowledgment could be established by the ordinary means of evidence without any limitations as to time. This civil status granted to the appellant by the former law, derived from the fact of her birth and from the acts of implied acknowledgment of her father, having taken place under the former legislation, gives appellant a vested interest inherent to her status which cannot in any way be impaired by the provisions of the civil Code. The transitory provisions of this Code declare that the changes introduced by it, when prejudicial to the rights acquired under the former civil legislation, shall not have retroactive effect, and such former legislation shall regulate all the rights arising under it although the Civil Code may provide differently or may not recognize them. (Decisions of the Supreme Court of Spain of January 16, 1900; of April 11 and December 28, 1907; and decisions of this court in the cases of Mijares vs. Nery, 3 Phil. 195. and of Llorente vs. Rodriguez, 3 Phil. 697.) Upon the authority of the decision just cited, the plaintiff in the present case is entitled to be considered and declared a natural son of Dr. Maximo Viola, voluntarily acknowledged by him through his own acts. There is, however, a statement in the decision in the Larena case which needs some revision, and it is this: "Such acknowledgment could be established by the ordinary means of evidence without any limitations as to time." These italicized words seemed to have been based on the sentence of the Supreme Tribunal of Spain of December 28, 1906 cited by Manresa in his comment on the 1st rule of the transitory provisions. But later decisions of that Tribunal, such as that of January 10, 1919, have held that the action by a natural child under Law 11 of Toro is limited by the period for personal actions, which under article 1964 of the civil Code is fifteen years from the death of the natural father. (See also Sentence of December 29, 1927.) It should
41

also be noted that personal actions under Law LXIII of Toro should be brought within twenty years; and that under section 44 of the code of Civil Procedure all action not otherwise provided for should be brought within ten years after the cause of action accrues. It will thus be seen that whether Law LXIII of Toro, or the Civil Code or the Code of Civil Procedure is applied, there is a period for the bringing of an action by a natural child whose status is governed by Law 11 of Toro. In view of the repealing provisions of the Code of Civil Procedure in section 795 thereof, the period for bringing an action by a natural child voluntarily recognized by the father under Law 11 of Toro, for declaration of the status of a natural child, should be 10 years from the death of a natural father. In this case, less than six years have elapsed from the death of Dr. Maximo Viola to the filing of the complaint. In any event this matter of prescription of the action has not been set up as a defense. Wherefore, the order of the lower court sustaining the demurrer to the plaintiff's amended complaint and dismissing the case, should be and is hereby reversed, without pronouncement as to costs. Let record of the case be returned to the Court of First Instance of Nueva Ecija. So ordered. Yulo, C.J., Moran and Ozaeta, JJ., concur. Separate Opinions PARAS, J., concurring: I concur in the result for the reason that the demurrer admits the allegation in the complaint that the plaintiffs is half brother to the defendants and that the latter promised to convey to him his legal share in the estate left by their common father. A good cause of action in equity has thus been shown. The Court of First Instance of the Province of Nueva Ecija where the plaintiff resides has jurisdiction to enforce the obligation assumed by the defendants.

42

G.R. No. L-26876

December 27, 1969

LUCRECIA JEREZ, JULIA JALANDONI, JULIETA JALANDONI, EVA JALANDONI, CARMELO JALANDONI, JOSE JALANDONI and ELISEO JALANDONI, petitioners, vs. HON. EMIGDIO V. NIETES, Judge of the Court of First Instance of Iloilo, LUCILO JALANDONI and VICTORIA JALANDONI DE GORRICETA, respondents. Tomas Concepcion, Lorenzo F. Miravite and Corazon Miraflor for petitioners. No appearance for respondents. FERNANDO, J.: This Court has not had previously the opportunity to pass squarely on the question raised in this petition for the review of a resolution of the Court of Appeals sustaining an order of respondent Judge Emigdio V. Nietes of the Court of First Instance of Iloilo, reopening the proceedings in the intestate estate of the late Nicolas Jalandoni, after having approved a project of partition and final accounting, and allowing a plea of intervention filed within the reglementary period by the other respondents, Lucilo Jalandoni and Victoria Jalandoni de Gorriceta, allegedly children of the deceased with an illegitimate status. The petitioners are the widow 1 and the legitimate children of the late Nicolas Jalandoni. The Court of Appeals cannot be reversed for recognizing the existence of such a power possessed by the respondent Judge to thus act favorably on a motion to intervene even if submitted at such a stage. That is the answer we give to the main issue thus posed. Our approval of the action taken, however, is not unqualified. For respondent Judge apparently was much too generous in his appraisal of the right of the private respondents to intervene, accepting as established what ought to have been proved. A modification of the appealed resolution is thus called for. The facts are undisputed. Nicolas Jalandoni died on October 3, 1960. Before the end 2 of that month, on October 27, a special proceeding for the settlement of his estate was filed before the sala of respondent Judge, petitioner Lucrecia Jerez, his widow, being appointed as administratrix. A project of partition and final accounting was submitted on June 14, 1966, resulting in an order from respondent Judge dated June 15, 1966, approving the same. On June 29, 1966, respondent Lucilo Jalandoni, alleging that he is an acknowledged natural child of the late Nicolas Jalandoni, and respondent Victoria Jalandoni de Gorriceta, alleging that she is an illegitimate daughter, sought to be allowed to intervene on the ground that they were preterited in the project of partition which they would have respondent Judge

reject for being contrary to law. Then came on July 80, 1966 an order of respondent Judge allowing intervention and reopening the proceedings to permit the movants, now private respondents, "to present whatever evidence they may have to show their right to participate in the estate of the deceased." After a motion for reconsideration, filed by petitioners, was denied, the matter was elevated to the Court of Appeals on a petition for certiorari and prohibition with preliminary injunction filed on September 3, 1966. As set forth at the opening of this decision, the Court of Appeals in a resolution of September 21, 1966 denied such petition to annul and set aside the order of respondent Judge. The basis for such resolution, penned by Justice Martin with the concurrence of Justice Rodriguez, Justice Esguerra concurring in the result with a separate opinion, was explained in this wise: ". . . that the determination of a prima facie interest in an estate to justify reopening proceedings for the settlement thereof is primarily addressed to the sound discretion and judgment of the probate court; that, while no supporting documents are appended to the motion to reopen tending to show the personality to intervene, the said motion is nevertheless verified upon oaths of the claimants of interest and the probate court has authority to require the submission of at least a prima facie showing of said interest; that the motion to reopen was filed on June 29, 1966 before the order closing the proceedings of June 15, 1966 had achieved finality and during the reglementary period within which the court still had jurisdiction over the case and retained full power to amend and control its process and orders so as to make them comfortable to law and justice; that, because the closure order aforesaid had not yet become final, the requirements of Rule 38 respecting relief from judgment do not apply and, hence, the failure of the motion to reopen to allege any of the grounds therein stated is not fatal; that the better practice in case of the appearance of alleged preterited heirs is to secure relief by reopening the proceedings by a proper motion within the reglementary period (Ramos, et al. vs. Ortuzar, et al., G.R. No. L-3299, August 20, 1951), it being desirable that all aspects of a controversy be ventilated in 3 the same proceeding and thus avoid multiplicity of suits; . . . ." Evidently, an ordinary division of three Justices did not suffice for a decision on such petition for certiorari and prohibition resulting in a creation of a division of five. Two Justices dissented from the aforesaid resolution, the dissenting opinion being penned by Justice Lucero with whom Justice Villamor concurred. The dissent is premised on the following considerations: "We should not let Lucilo Jalandoni (alleged acknowledged natural son) and Victoria Jalandoni de Gorriceta (alleged illegitimate daughter) to come in first and identify themselves later, because the better policy according to jurisprudence (Asinas vs. Court, 51 Phil. 665) is to require them first to produce prima facie evidence of such a civil status before opening the door and letting them in. Under Section 2, Rule 12, Revised, 'a person may, before
43

or during a trial, be permitted by the court, in its discretion, to intervene in an action, if he has legal interest in the matter in litigation.' The possibility of interlopers getting in for a share in the estate cannot be totally discounted specially considering that the present intestate proceedings had been pending for the last six (6) years without a motion to intervene having been filed by the present claimants in spite of the notice of publication and the in rem character of the intestate proceedings. According to their residence certificate, the claimants are residents of Iloilo City (Rec. 20). The procedure adopted by the lower court is more conducive to prejudice and unnecessary loss of time, effort and expense than the method suggested by jurisprudence of requiring first a prima facie evidence of status before letting them come in to intervene. Hence, the order of July 30, 1966 sought to be nullified under the present petition insofar as it reconsidered the approval of the project of partition and the first accounting is unjustified, as practically putting the cart before the horse instead of the horse before the cart. Moreover, the claims can be asserted in a separate action against the legitimate children to whom the share 4 of the deceased Nicolas Jalandoni was adjudicated." Stress is laid in this petition for review in respondent Judge allowing private respondents to intervene after the intestate proceedings were closed. We do not see it that way. We repeat what we said at the outset. The challenged resolution cannot be reversed insofar as it recognized the power of respondent Judge to reopen the proceedings and allow intervention. While it is undeniable that the question presented has not been definitely passed upon before, still an indication of how such an issue should be resolved is to be found in an opinion of Justice 5 Tuason in Ramos v. Ortuzar, referred to in the resolution of the Court of Appeals. Thus: "The only instance that we can think of in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action the effect of which, if successful, would be, as in the instant case, for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of." The above excerpt commends itself for approval. We do so now and definitely hold that rather than require any party who can allege a grievance that his interest was not recognized in a testate or intestate proceeding to file a separate and independent action, he may within the reglementary period secure the relief that is his due by a reopening of the case even after a project of partition and final accounting had been approved.

Such a view finds support in the doctrine of liberality as to pleas for intervention so 6 consistently followed and adhered to by this Court. As was emphatically expressed 7 by Justice Makalintal, speaking for this Court, in Balane v. De Guzman: "Respondent Judge would have done well to brush aside narrow technicalities in this case, allow the intervention prayed for and thus avoid needless delay in the resolution of the conflicting interests of all the parties." It is thus understandable why the resolution of the Court of Appeals upholding the power of respondent Judge to reopen the proceedings and allow intervention is not vulnerable to attack. It was within his competence to do so. The question remains, however, whether he did so in the appropriate manner. It is not the existence of the power but the mode of its exercise that is open to question. In that sense, the appealed resolution bears further scrutiny. It is indisputable that after the project of partition and final accounting was submitted by the counsel for petitioner Lucrecia Jerez, as administratrix, on June 14, 1966, respondent Judge approved the same and declared closed and terminated the intestacy the next day, June 15, 1966. Subsequently, on a verified petition by private respondents, filed on June 29, 1966, based on the assertion made that they should have had a share in the estate as illegitimate children but that they were omitted in the aforesaid project of partition, they sought to be allowed to intervene and "to have the project of partition rejected for being contrary to law." Such a pleading, without more, resulted in the questioned order of July 30, 1966, reopening the proceedings and reconsidering the approval of the project of partition and final accounting, to enable the private respondents "to present whatever evidence they may have to show their right to participate in the estate of the deceased." Although the recognition of their right to intervene appeared to be tentative and conditional, it cannot be denied that they were given a standing sufficient to set aside the project of partition. Respondent Judge acted too soon. The verified motion on the part of private respondents did not suffice to call into play the power of respondent Judge to allow intervention. There must be proof beyond allegations in such motion to show the interest of the private movants. In the absence thereof, the action taken by respondent Judge could be considered premature. As was stated by us in an opinion penned by Justice Sanchez: "No one may quibble over the existence of the court's discretion on whether to admit or reject intervention. But such discretion is not 8 unlimited." WHEREFORE, the resolution of September 21, 1966 of the Court of Appeals is hereby modified in the sense that respondent Judge, Honorable Emigdio V. Nietes
44

of the Court of First Instance of Iloilo Judicial District, Branch I, or whoever may be acting in his place, is directed to require private respondents Lucilo Jalandoni and Victoria Jalandoni de Gorriceta to present evidence to justify their right to intervene in Special Proceeding No. 1562 re Intestate Estate of Nicolas H. Jalandoni pending before such sala. In the event that they could so justify such a right, the lower court on the basis of such evidence is to proceed conformably to law. Without pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Teehankee and Barredo, JJ., concur.

45

NEW ACTION TO ANNUL SETTLEMENT WITHIN REGLEMENTARY PERIOD

G.R. No. L-19060

May 29, 1964

IGNACIO GERONA, MARIA CONCEPCION GERONA, FRANCISCO GERONA and DELFIN GERONA, petitioners, vs. CARMEN DE GUZMAN, JOSE DE GUZMAN, CLEMENTE DE GUZMAN, FRANCISCO DE GUZMAN, RUSTICA DE GUZMAN, PACITA DE GUZMAN and VICTORIA DE GUZMAN respondents. Manuel J. Serapio for petitioners. D. F. Castro and Associates for respondents. CONCEPCION, J.: Appeal by certiorari from a decision of the Court of Appeals, affirming that of the Court of First Instance of Bulacan. In the complaint, filed with the latter court on September 4, 1958, petitioners herein, namely, Ignacio, Maria Concepcion, Francisco and Delfin, all surnamed Gerona, alleged that they are the legitimate children of Domingo Gerona and Placida de Guzman; that the latter, who died on August 9, 1941 was a legitimate daughter of Marcelo de Guzman and his first wife, Teodora de la Cruz; that after the death of his first wife, Marcelo de Guzman married Camila Ramos, who begot him several children, namely, respondents Carmen, Jose, Clemente, Francisco, Rustica, Pacita and Victoria, all surnamed De Guzman; that Marcelo de Guzman died on September 11, 1945; that subsequently, or on May 6, 1948, respondents executed a deed of "extra-judicial settlement of the estate of the deceased Marcelo de Guzman", fraudulently misrepresenting therein that they were the only surviving heirs of the deceased Marcelo de Guzman, although they well knew that petitioners were, also, his forced heirs; that respondents had thereby succeeded fraudulently in causing the transfer certificates of title to seven (7) parcels of land, issued in the name of said deceased, to be cancelled and new transfer certificates of title to be issued in their own name, in the proportion of 1/7th individual interest for each; that such fraud was discovered by the petitioners only the year before the institution of the case; that petitioners forthwith demanded from respondents their (petitioners) share in said properties, to the extent of 1/8th interest thereon; and that the respondents refused to heed said demand, thereby causing damages to the

petitioners. Accordingly, the latter prayed that judgment be rendered nullifying said deed of extra-judicial settlement, insofar as it deprives them of their participation of 1/18th of the properties in litigation; ordering the respondents to reconvey to petitioners their aforementioned share in said properties; ordering the register of deeds to cancel the transfer certificates of title secured by respondents as above stated and to issue new certificates of title in the name of both the petitioners and the respondents in the proportion of 1/8th for the former and 7/8th for the latter; ordering the respondents to render accounts of the income of said properties and to deliver to petitioners their lawful share therein; and sentencing respondents to pay damages and attorney's fees. In their answer, respondents maintained that petitioners' mother, the deceased Placida de Guzman, was not entitled to share in the estate of Marcelo de Guzman, she being merely a spurious child of the latter, and that petitioners' action is barred by the statute of limitations. After appropriate proceedings, the trial court rendered a decision finding that petitioners' mother was a legitimate child, by first marriage, of Marcelo de Guzman; that the properties described in the complaint belonged to the conjugal partnership of Marcelo de Guzman and his second wife, Camila Ramos; and that petitioners' action has already prescribed, and, accordingly, dismissing the complaint without costs. On appeal taken by the petitioners, this decision as affirmed by the Court of Appeals, with costs against them. Petitioners maintain that since they and respondents are co-heirs of the deceased Marcelo de Guzman, the present action for partition of the latter's estate is not subject to the statute of limitations of action; that, if affected by said statute, the period of four (4) years therein prescribed did not begin to run until actual discovery of the fraud perpetrated by respondents, which, it is claimed, took place in 1956 or 1957; and that accordingly, said period had not expired when the present action was commenced on November 4, 1958. Petitioners' contention is untenable. Although, as a general rule, an action for partition among co-heirs does not prescribe, this is true only as long as the defendants do not hold the property in question under an adverse title (Cordova vs. Cordova, L-9936, January 14, 1948). The statute of limitations operates as in other cases, from the moment such adverse title is asserted by the possessor of the property (Ramos vs. Ramos, 45 Phil. 362; Bargayo v. Camumot, 40 Phil. 857; Castro v. Echarri, 20 Phil. 23).

46

When respondents executed the aforementioned deed of extra-judicial settlement stating therein that they are the sole heirs of the late Marcelo de Guzman, and secured new transfer certificates of title in their own name, they thereby excluded the petitioners from the estate of the deceased, and, consequently, set up a title adverse to them. And this is why petitioners have brought this action for the annulment of said deed upon the ground that the same is tainted with fraud. 1wph1.t Although, there are some decisions to the contrary (Jacinto v. Mendoza, L-12540, February 28, 1959; Cuison v. Fernandez, L-11764, January 31, 1959; Maribiles v. Quinto, L-10408, October 18, 1956; and Sevilla v. De los Angeles, L-7745, November 18, 1955), it is already settled in this jurisdiction that an action for reconveyance of real property based upon a constructive or implied trust, resulting from fraud, may be barred by the statute of limitations (Candelaria v. Romero, L-12149, September 30, 1960; Alzona v. Capunita, L-10220, February 28, 1962). Inasmuch as petitioners seek to annul the aforementioned deed of "extra-judicial settlement" upon the ground of fraud in the execution thereof, the action therefor may be filed within four (4) years from the discovery of the fraud (Mauricio v. Villanueva, L-11072, September 24, 1959). Such discovery is deemed to have taken place, in the case at bar, on June 25, 1948, when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents exclusively, for the registration of the deed of extra-judicial settlement constitute constructive notice to the whole world (Diaz v. Gorricho, L-11229, March 29, 1958; Avecilla v. Yatco, L-11578, May 14, 1958; J.M. Tuason & Co., Inc. v. Magdangal, L-15539, January 30, 1962; Lopez v. Gonzaga, L-18788, January 31, 1964). As correctly stated in the decision of the trial court: In the light of the foregoing it must, therefore, be held that plaintiffs learned at least constructively, of the alleged fraud committed against them by defendants on 25 June 1948 when the deed of extra-judicial settlement of the estate of the deceased Marcelo de Guzman was registered in the registry of deeds of Bulacan, Plaintiffs' complaint in this case was not filed until 4 November 1958, or more than 10 years thereafter. Plaintiff Ignacio Gerona became of age on 3 March 1948. He is deemed to have discovered defendants' fraud on 25 June 1948 and had, therefore, only 4 years from the said date within which to file this action. Plaintiff Maria Concepcion Gerona became of age on 8 December 1949 or after the registration of the deed of extra-judicial settlement. She also had

only the remainder of the period of 4 years from December 1949 within which to commence her action. Plaintiff Francisco Gerona became of age only on 9 January 1952 so that he was still a minor when he gained knowledge (even if only constructive) of the deed of extra-judicial settlement on 25 June 1948. Likewise, plaintiff Delfin Gerona became of legal age on 5 August 1954, so that he was also still a minor at the time he gained knowledge (although constructive) of the deed of extra-judicial settlement on 25 June 1948. Francisco Gerona and Delfin Gerona had, therefore, two years after the removal of their disability within which to commence their action (Section 45, paragraph 3, in relation to Section 43, Act 190), that is, January 29, 1952, with respect to Francisco, and 5 August 1954, with respect to Delfin. WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with costs against petitioners herein. It is so ordered. Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barredo, Paredes, Regala and Makalintal, JJ., concur. Padilla, Labrador and Dizon, JJ., took no part.

47

G.R. No. 118680

March 5, 2001

MARIA ELENA RODRIGUEZ PEDROSA, petitioner, vs. THE HON. COURT OF APPEALS, JOSE, CARMEN, MERCEDES & RAMON, all surnamed RODRIGUEZ, ROSALINA RODRIGUEZ, CHAN LUNG FAI, MATEO TAN TE, TE ENG SUY, LORETA TE, VICTORIO S. DETALIA, JEROME DEIPARINE, PETRONILO S. DETALIA, HUBERT CHIU YULO, PATERIO N. LAO, LORENSITA M. PADILLA, IMMACULATE CONCEPCION COLLEGE AND LILIAN EXPRESS, INC. and TIO TUAN, respondents. QUISUMBING, J.: This petition assails the decision of the Court of Appeals dated May 23, 1994 which affirmed the judgment of the Regional Trial Court, Branch 15, of Ozamiz City in Civil Case No. OZ-1397. The facts of this case are as follows: On April 8, 1946, the spouses Miguel Rodriguez and Rosalina J. de Rodriguez initiated proceedings before the CFI of Ozamiz City for the legal adoption of herein petitioner, Maria Elena Rodriguez Pedrosa. On August 1, 1946, the CFI granted the petition and declared petitioner Pedrosa the adopted child of Miguel and Rosalina. On April 29, 1972, Miguel died intestate. Thereafter, petitioner and Rosalina entered into an extrajudicial settlement of Miguel's estate, adjudicating between themselves in equal proportion the estate of Miguel. On November 21, 1972, private respondents filed an action to annul the adoption of petitioner before the CFI of Ozamiz City, with petitioner and herein respondent Rosalina as defendants docketed as OZ 349. On August 28, 1974, the CFI denied the petition and upheld the validity of the adoption. Thereafter, the private respondents appealed said decision to the Court of Appeals. On March 11, 1983, while said appeal was pending, the Rodriguezes entered into an extrajudicial settlement with respondent Rosalina for the partition of the estate of Miguel and of another sister, Pilar. Rosalina acted as the representative of the heirs of Miguel Rodriguez. Pilar had no heirs except his brothers and sisters.

The Deed of Extrajudicial Settlement and Partition covered fourteen parcels of land covering a total area of 224,883 square meters. These properties were divided among Jose, Carmen, Mercedes, Ramon and the heirs of Miguel, represented solely by Rosalina. The heirs of Miguel were given 226 square meters of parcel 2, and 1 9,567 square meters and 24,457 square meters of parcels 7 and 9, respectively. The total land area allocated to the heirs of Miguel was 34,250 square meters. Armed with the Deed of Extrajudicial Settlement and Partition, respondents Rodriguezes were able to secure new Transfer Certificates of Title (TCTs) and were 2 able to transfer some parcels to the other respondents herein. Lots 504-A-6, 504-B-3 and 504-C-4, portions of Parcel 3, designated as Lot 504, were 3 transferred to respondents Chuan Lung Fai, but not included in the Deed of Settlement and Partition, were transferred to respondent Lilian Express, Inc. and are now registered under TCT No. T-11337. Parcel 6, Lot 560, was subdivided among Ramon, Jose, Carmen and Mercedes and was designated as Lots 560-A, 560B, 560-C, 560-D and 560-E. Lot 560-A covering 500 square meters was transferred 4 to respondent Victorino Detall and was subsequently transferred to Jerome Deiparine who registered it under his name under TCT No. T-10706. Lot 560-B with 5 500 square meters was transferred to respondent Petronilo Detalla and was later transferred to respondent Hubert Chiu Yulo who registered it under his name under TCT No. T-11305. Lot 560-C was transferred and registered under the name of respondent Paterio Lao with TCT No. T-10206. Lot 560-D was sold to and subsequently registered in the name of Lorensita M. Padilla under TCT No. T-10207. The remaining portion, Lot 560-E consisting of 43,608 square meters was bought by respondent Immaculate Concepcion College and was registered in its name under 6 TCT No. T-10208. On June 19, 1986, the parties in the appeal which sought to annul the adoption of petitioner Pedrosa filed a joint Motion to Dismiss. On June 25, 1986, the Court of Appeals dismissed the appeal but upheld the validity of the adoption of petitioner. Thereafter, petitioner sent her daughter, Loreto Jocelyn, to claim their share of the properties from the Rodriguezes. The latter refused saying that Maria Elena and Loreto were not heirs since they were not their blood relatives. Petitioner, then, filed a complaint to annul the 1983 partition. The said complaint was filed on January 28, 1987. Said complaint was later amended on March 25, 1987 to include the allegation "that earnest efforts toward a compromise were 7 made between the plaintiffs and the defendants, but the same failed."
48

The Regional Trial Court dismissed the complaint. Petitioner appealed to the Court of Appeals. The appellate court affirmed the 8 decision of the trial court. Its ruling was premised on the following grounds: 1) that the participation of Rosalina has already estopped her from questioning the validity of the partition, and since she is already estopped, it naturally follows that Maria Elena, her successor-in-interest, is likewise estopped, applying Article 1439 of the Civil Code; 2) that the appeal of Maria Elena and her claim that the partition is null and void is weakened by her inconsistent claim that the partition would have been alright had she been given a more equitable share; 3) the action is essentially an action for rescission and had been filed late considering that it was filed beyond the 4 year period provided for in 9 Article 1100 of the Civil Code; 4) that fraud and/or bad faith was never established. Petitioner filed a Motion for Reconsideration, which was denied by the Court of 10 Appeals in a Resolution dated December 20, 1994. Hence, this petition wherein the petitioner asserts that the following errors were allegedly committed by the Court of Appeals in I. FINDING THAT THE EXTRAJUDICIAL SETTLEMENT AND PARTITION ENTERED INTO BY DEFENDANT JUREDINI AND DEFENDANTS-APPELLANTS RODRIGUEZES WAS VALID AND BINDING UPON THE PLAINTIFF-APPELLANT WHO DID NOT PARTICIPATE IN SAID TRANSACTION II. CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT HAVE ALREADY PRESCRIBED TWO (2) YEARS AFTER PUBLICATION OF THE EXTRAJUDICIAL SETTLEMENT AND PARTITION IN THE NEWSPAPER OF GENERAL CIRCULATION III. ...CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT IS BARRED OR ESTOPPED IN FILING THIS CASE (sic) IN VIEW OF THE DISMISSAL OF THE APPEAL IN CIVIL CASE NO. OZ 349 INTERPOSED BY HEREIN DEFENDANTS-APPELLEES WHO WERE THEN PLAINTIFFS-APPELLANTS IN AC [C]-G.R. NO. SP-00208

IV. SUSTAINING THE DEFENDANT-APPELLEES' CLAIM THAT AS THEY HAVE NOT AS YET RECOGNIZED PLAINTIFF-APPELLANT AS AN ADOPTED DAUGHTER OF MIGUEL RODRIGUEZ IT WAS NOT NECESSARY FOR THEM TO HAVE HER PARTICIPATE IN THE EXTRAJUDICIAL SETTLEMENT, EXHIBITS "S" AND "I" V. CONCLUDING THAT THE PLAINTIFF-APPELLANT HAD NOT CONCLUSIVELY SHOWN THAT MIGUEL RODRIGUEZ WAS A CO-OWNER OF THE LANDS SOLD AND HENCE IT FOLLOWS THAT SHE HAS NO RIGHT OF REDEMPTION OF THOSE LANDS VI. FINDING THAT PORTION OF LOTS NOS. 504 AND 560 SOLD TO THE OTHER DEFENDANTSAPPELLEES WERE CLEAN AND FREE FROM ENCUMBRANCES OR ANY FLAWS HENCE WERE VALID VII. FINDING THAT THE PLANTIFFAPPELLANT NEVER APPEARED IN COURT TO TESTIFY OR REBUT THE ASSERTIONS OF THE DEFENDANTSAPPELLANTS THAT THERE WAS A VALID PARTITION VIII. AWARDING PLAINTIFFAPPELLANT DAMAGES FOR THE INCOME OF HER 11 SHARE IN THE PROPERTIES IN QUESTION In sum, the issues to be resolved in our view are (1) whether or not the complaint for annulment of the "Deed of Extrajudicial Settlement and Partition" had already prescribed; (2) whether or not said deed is valid; and (3) whether or not the petitioner is entitled to recover the lots which had already been transferred to the respondent buyers. Petitioner argues that the complaint for annulment of the extrajudicial partition has not yet prescribed since the prescriptive period which should be applied is four years following the case of Beltran vs. Ayson, 4 SCRA 69 (1962). She also avers that Sec. 4, Rule 74 which provides for a two-year prescriptive period needs two requirements. One, the party assailing the partition must have been given notice, and two, the party assailing the partition must have participated therein. Petitioner 12 insists these requirements are not present in her case, since she did not participate in the "Deed of Extrajudicial Settlement and Partition." She cites Villaluz vs. Neme, 7 SCRA 27, 30 (1963), where we held that a deed of extrajudicial partition executed without including some of the heirs, who had no knowledge and consent to the same, is fraudulent. She asserts that she is an adoptive daughter and thus an 13 heir of Miguel. Petitioner also contends that the respondent buyers were buyers in bad faith since they failed to exercise the necessary due diligence required before purchasing the
49

lots in question. In the alternative, petitioner wants to redeem the said lots as a co-owner of respondent Rodriguezes under the provisions of Article 1620 of the 15 New Civil Code. Lastly, petitioner asserts that she will suffer lesion if the partition would be allowed. She asks for the rescission of the said partitioning under Articles 165-175 of the Civil 16 Code. Respondents, in response, claim that the action of petitioner had already prescribed. In addition, they argue that petitioner, Maria Elena, and Rosalina already have their shares in the estate of Miguel Rodriguez reflected in the compromise agreement they entered into with the respondent Rodriguezes in ACG.R. SP 00208. Finally, respondents aver that the non-participation of Maria Elena in the extrajudicial partition was understandable since her status as an adopted child was then under litigation. In any case, they assert that the shares of Miguel's heirs 17 were adequately protected in the said partition. Section 4, Rule 74 provides for a two year prescriptive period (1) to persons who have participated or taken part or had notice of the extrajudicial partition, and in 19 addition (2) when the provisions of Section 1 of Rule 74 have been strictly complied with, i.e., that all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through 20 guardians. Petitioner, as the records confirm, did not participate in the extrajudicial partition. Patently then, the two-year prescriptive period is not applicable in her case. The applicable prescriptive period here is four (4) years as provided in Gerona vs. De Guzman, 11 SCRA 153 (1964), which held that: [The action to annul] a deed of "extrajudicial settlement" upon the ground of fraud...may be filed within four years from the discovery of the fraud. Such discovery is deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in 21 the name of respondents exclusively. Considering that the complaint of the petitioner was filed on January 28, 1987, or three years and ten months after the questioned extrajudicial settlement dated March 11, 1983, was executed, we hold that her action against the respondents on the basis of fraud has not yet prescribed.
18

14

Section 1 of Rule 74 of the Rules of Court is the applicable rule on publication of extrajudicial settlement. It states: The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice 22 thereof. Under said provision, without the participation of all persons involved in the proceedings, the extrajudicial settlement cannot be binding on said persons. The rule contemplates a notice which must be sent out or issued before the Deed of Settlement and/or Partition is agreed upon, i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition, not after, which was when publication was done in the instant case. Following Rule 74 and the ruling in Beltran vs. Ayson, since Maria Elena did not participate in the said partition, the settlement is not binding on her. The provision of Section 4, Rule 74 will also not apply when the deed of extrajudicial partition is sought to be annulled on the ground of fraud. A deed of extrajudicial partition executed without including some of the heirs, who had no knowledge of 23 and consent to the same, is fraudulent and vicious. Maria Elena is an heir of Miguel together with her adopting mother, Rosalina. Being the lone descendant of Miguel, she excludes the collateral relatives of Miguel from participating in his 24 estate, following the provisions of Article 1003 of the Civil Code. The private respondent Rodriguezes cannot claim that they were not aware of Maria Elena's adoption since they even filed an action to annul the decree of adoption. Neither can they claim that their actions were valid since the adoption of Maria Elena was still being questioned at the time they executed the deed of partition. The complaint seeking to annul the adoption was filed only twenty six (26) years after the decree of adoption, patently a much delayed response to prevent Maria Elena from inheriting from her adoptive parents. The decree of adoption was valid and existing. With this factual setting, it is patent that private respondents executed the deed of partition in bad faith with intent to defraud Maria Elena. In the case of Segura vs. Segura, the Court held: This section [referring to section 4, Rule 74] provides in gist that a person who has been deprived of his lawful participation in the estate of the decedent, whether as heir or as creditor, must assert his claim within two years after the extrajudicial or summary settlement of such estate under
50

Sections 1 and 2 respectively of the same Rule 74. Thereafter, he will be precluded from doing so as the right will have prescribed. It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule, "no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof." As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two 25 years from its execution in 1941. To say that Maria Elena was represented by Rosalina in the partitioning is imprecise. Maria Elena, the adopted child, was no longer a minor at the time Miguel died. Rosalina, only represented her own interests and not those of Maria Elena. Since Miguel predeceased Pilar, a sister, his estate automatically vested to his child and widow, in equal shares. Respondent Rodriguezes' interests did not include Miguel's estate but only Pilar's estate. Could petitioner still redeem the properties from buyers? Given the circumstances in this case, we are constrained to hold that this is not the proper forum to decide this issue. The properties sought to be recovered by the petitioner are now all registered under the name of third parties. Well settled is the doctrine that a Torrens Title cannot be collaterally attacked. The validity of the title can only be 26 raised in an action expressly instituted for such purpose. Petitioner asks for the award of damages. No receipts, agreements or any other documentary evidence was presented to justify such claim for damages. Actual damages, to be recoverable, must be proved with a reasonable degree of certainty. Courts cannot simply rely on speculation, conjecture or guesswork in determining 27 the fact and amount of damages. The same is true for moral damages. These 28 cannot be awarded in the absence of any factual basis. The unsubstantiated testimony of Loreto Jocelyn Pedrosa is hearsay and has no probative value. It is settled in jurisprudence that damages may not be awarded on the basis of hearsay 29 evidence. Nonetheless, the failure of the petitioner to substantiate her claims for damages does not mean that she will be totally deprived of any damages. Under the law, nominal damages are awarded, so that a plaintiff's right, which has been 30 invaded or violated by defendants may be vindicated and recognized.

Considering that (1) technically, petitioner sustained injury but which, unfortunately, was not adequately and properly proved, (2) petitioner was unlawfully deprived of her legal participation in the partition of the estate of Miguel, her adoptive father, (3) respondents had transferred portions of the properties involved to third parties, and (4) this case has dragged on for more than a decade, we find it reasonable to grant in petitioner's favor nominal damages in 31 recognition of the existence of a technical injury. The amount to be awarded as such damages should at least commensurate to the injury sustained by the 32 petitioner considering the concept and purpose of said damages. Such award is given in view of the peculiar circumstances cited and the special reasons extant in 33 this case. Thus, the grant of ONE HUNDRED THOUSAND (P100,000.00) PESOS to petitioner as damages is proper in view of the technical injury she has suffered. WHEREFORE, the petition is GRANTED. The assailed decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The "Deed of Extrajudicial Settlement and Partition" executed by private respondents on March 11, 1983 is declared invalid. The amount of P100,000.00 is hereby awarded to petitioner as damages to be paid by private respondents, who are also ordered to pay the costs. SO ORDERED. Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

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SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE

conveyed by absolute deed of sale, to the aforesaid creditors, her interest and participation in the land. This sale was likewise inscribed in the office of the Register of Deeds. However, in a motion of March 14, 1950, Tiburcia Magsalin Vda. de Francisco, mother of the deceased Jose M. Francisco, allegedly in representation of the minor Jose Francisco y Palumpon, seventeen, averred that this minor was a recognized natural son of the deceased, with legal right to participate in his estate, that the previous proceedings were void because Rosa Aldana Francisco had concealed such fact, and because she had interests in conflict with those of her three sons, the truth being that the land was private property of Jose M. Francisco of which she could not have been awarded a portion in fee simple. Tiburcia prayed specifically for the following remedies: (a) Her appointment as guardian ad item of Jose Francisco y Palumpon; (b) her appointment as guardian ad item of the three legitimate children Jose, Thelma and Aurelio, in place of Rosa Aldana Francisco; (c) declaration that Jose Francisco y Palumpon was a recognized natural child of the deceased with the right to inherit; (d) annulment of the order of November 29, 1947, with the adjudication that the only heirs of the deceased are the four children already named, the widow being entitled to usufruct only; (e) annulment of the mortgage and sale executed by Rosa Aldana Francisco in favor of the Carreon sisters; and (f) appropriate instruction to the Register of Deeds. Oppositions to the motion were presented by Rosa Aldana Francisco and by the two sisters Fausta and Catalina Carreon. One of the objectors pointed out that Tiburcia Magsalin could not be named guardian of the natural and the legitimate children, because she would then be representing interests in conflict. Wherefore the court chose to appoint, and did appoint, the natural mother of Jose Francisco y Palumpon (Macaria Palumpon) as his guardian ad item even as it named Tiburcia Magsalin Vda. de Francisco the guardian ad item of the minors, legitimate children Jose Thelma and Aurelio. Now, when the motion to annul or reopen was called for hearing, Macaria Palumpon requested in open court the dismissal, without prejudice, of Jose Francisco y Palumpon's demand for recognition. Her request was granted; but the court announced that the three minor children's petition for reopening of the order adjudicating one-half to Rosa Aldana Francisco, with all consequent effects upon the mortgage and sale, will be taken up later, i.e., on May 5, 1950.
52

G.R. No. L-5033

June 28, 1954

In the matter of the Summary Settlement of the intestate estate of the deceased JOSE M. FRANCISCO, TIBURCIA M. VDA. DE FRANCISCO, administratrix-appellees, vs. FAUSTA CARREON and CATALINA CARREON, oppositors-appellants. Celestino L. de Dios for appellants. Pedro Magsalin for appellee. BENGZON, J.: September 2, 1947, Rosa Aldana Francisco petitioned the Court of First Instance of Rizal summarily to settle the estate of her husband Jose M. Francisco who had died in 1944. Alleging under oath that they had three minor children who were his legal heirs, and that the deceased left a parcel of land with house thereon, and no creditors, she asked for declaration that the persons entitled to share in his estate are the said three minor children, with herself as usufructuary. In connection with her petition she requested for appointment as guardian ad item of her three minor children, and her request was granted in due course. After the requisite publication, the petition was heard, and later approved by an order dated November 29, 1947, declaring "the petitioner Rosa Aldana Francisco, and her children Jose Francisco Jr., Thelma Francisco and Aurelio Francisco as the only heirs of the deceased" and adjudicating unto the said heirs the abovementioned property in the proportion of one-half undivided share to the widow, and the other half in equal parts, to the said children. This order was registered in the office of the Register of Deeds, who issued thereafter (January 15, 1948) a new certificate of title in the names and in the proportion already stated. August 4, 1948, Rosa Aldana Francisco mortgaged her share of the realty to the sisters Fausta Carreon and Catalina Carreon for the sum of P13,000, and the deed of mortgage was duly registered August 16, 1948. Afterwards, on January 19, 1950 she

Both Rosa Aldana and the Carreons moved for reconsideration, contending that, inasmuch as Jose Francisco y Palumpon had withdrawn, there was no authority to continue, for the matter became a closed incident. Thereafter, and probably to meet objections, Tiburcia Magsalin Vda. de Francisco, as guardian ad item of the three legitimate, submitted an "amended motion" wherein she made practically the same allegations of her previous motion and prayed for identical remedies except those touching the recognition of Jose Francisco y Palumpon. Overruling objections, the court admitted the amended motion, heard it granting the interested parties opportunity to present their evidence and arguments, and rendered judgment holding the realty was private property of the deceased Jose Francisco, who had acquired it four years before his marriage to Rosa Aldana. Wherefore it revoked the order of November 29, 1947; it held that the whole property passed to the ownership of the three legitimate children of the deceased, subject to usufructuary rights of the widow; it annulled the mortgage and the sale executed by Rosa Aldana in favor of the Carreon sisters, and then issued other appropriate instructions to the Register of Deeds. Rosa Aldana acquiesced in the resolution. Not the Carreon sisters, who appealed in due time, asserting the court erred: (1) in continuing to hear the motion for reopening, even after the natural child had withdrawn from the litigation and (2) in taking cognizance of the annulment of the mortgage and sale, which it could validly consider as a probate court. Arguing their first assignment of error, the appellants assert that Jose Francisco y Palumpon was the only one applying for positive relief recognition as natural child and that once his petition for recognition had been withdrawn, the court had no jurisdiction in ordering the continuance of the hearing in so far as the other heirs were concerned. The "amended motion", appellants add, could serve no purpose, because the motion was not susceptible to any amendment, for it had ceased to exist. Strictly speaking, and at first blush, appellants seem to be correct. Yet inasmuch as the original order granting the widow Rosa Aldana one-half of the property was entirely erroneous, and she apparently failed to fully protect her children's right, their point results in pure technicality on which "scant 1 consideration" is ordinarily bestowed. All the more when it serves to promote unfair advantage. Nevertheless, let us carefully examine the motion of March 14, 1950. It is signed by Tiburcia Magsalin. In it she asked for appointment as guardian ad item for the

natural child and for the three legitimate children. She asked for remedial measures beneficial to the four children. Hence, the motion may be regarded in a spirit of liberality, as interposed on behalf of the said four children not only a motion of the natural child. It is true that the motion begins, "Comparece el menor Jose Francisco y Palumpon, quien en este case sera representado por su curadura-adlitem etc."; but that did not necessarily exclude the other children for whom relief was prayed. Precisely, because the complaint also prayed for relief beneficial to the three legitimate children contrary to the interests of the natural child as hereinbefore related the court declined to permit Tiburcia Magsalin to represent the four children, but allowed her to act for three only. At any rate "parties may be dropped or added by order of the court on motion of any party or of its own 2 initiatives at any stage of the action and on such terms as are just". And in line with this receipt, the court's position may equitably be upheld. Again, supposing the original motion of March 14 did not afford legal standing to the three legitimate children, and that it could not be "amended", as contended by appellants, we perceive no reason to prevent the court below from considering such amended motion as a new and independent petition in the expediente, filed 3 expressly on behalf of the three minor children. The matter of time might conceivably be material in regard in considering the "amended" motion as "original" motion; but in this case it happens to be immaterial, because under section 5 of Rule 74 such motion may be lodged with the court within one year after the minors have reached majority; and they are still minors now. Incidentally this section 5 fully answers appellants' contention that Tiburcia's moves should have been initiated within two years after November 8, 1947. Appellants may not justly complain that they thought such petition for readjustment or reopening could take place only within two years as prescribed by section 4 of Rule 74 and as annotated in the certificate of title; because they are conclusively presumed to know the existence and provisions of section 5, Rule 74. As the trial judge correctly observed: But the whole trouble is that they accepted the mortgage with the encumbrance annotated; and while it referred to Rule 74, Section 4, and did not specifically mention section 5, the fact that section 4, Rule 74 was therein noted should have been sufficient warning to them that the title was subject to the interest of persons unduly prejudiced hereby. We take judicial notice of the fact that in the adjudication in summary settlements more often that not, the order merely says that the sale shall be subject to the provisions of section 4, Rule 74. This is the case because the Court can not foresee whether the movant would be affected; but section 5 being an
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imposition of the law, and being a mere sequence to the provisions of Section 4; we hold that where the title on its face shows that it was subject to the provisions of Rule 74, section 4, a third person who accepts it must take notice that he is running the risk of interferring with the rights of minors as provided under section 5, Rule 74. Contrary to appellants' claim, relief for the minors cannot be directed against the bond which, according to appellants, should have been demanded under section 3, Rule 74, because that section applies where personal property is distributed not where, as here, realty is the subject of partition. Last stand of appellants is the proposition that the court of first instance of Rizal, acting as probate court, had no jurisdiction to act on the petition, which should have been the subject of a separate action. And the case of Mendiola vs. Mendiola 7 Phil., p. 7 is cited; but such precedent is inapplicable, because there a partition by contract was signed by the parties who were all of age. Of course, several decisions hold that "If during the summary proceeding some of the heirs claim, by title adverse to that of the decedent, some parcels of land, the probate court has no jurisdiction to pass upon the issue which must be decided in a 4 separate suit". But here there is no question that the realty belonged to the decedent; and a separate suit was unnecessary, specially remembering that in these summary settlements the judge is expected to "proceed summarily" and "without delay" "to determine who are the persons legally entitled to participate in the 5 estate, and to apportion and divide it among them." The resolution under review apportions property admittedly belonging to the decedent among his legal heirs. It is no objection that it affects the herein appellants. They knew or ought to know the rule permitting such to reapportionment even after two years, and they have been given every chance to be heard, having been by their own petition, regarded as parties to the entire proceedings. And section 4, Rule 74 (which must be deemed extensible to situations covered by section 5, Rule 74) expressly authorizes the court to give to every heir his lawful participation in the real estate "notwithstanding any transfers of such real estate" and to "issue execution" thereon. All this implies that, when within the amendatory period the realty has been alienated, the court in re-dividing it among the heirs has authority to direct cancellation of such alienation in the same estate proceedings, whenever it becomes necessary to do so. To require the institution of a separate action for such annulment would run counter to the letter of the above rule and the spirit of these summary settlements.

From the foregoing, the conclusion follows that no prejudicial error was committed by the lower court, whose order is, consequently, affirmed with costs. Paras, C. J., Pablo, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador and Concepcion, JJ., concur.

54

G.R. No. L-10474

February 28, 1958

1950. This notice, however, was subsequent to the registration of the deed of sale, in favor of Honorato Salacup, which took place on June 17, 1950. The complaint alleges that the widow Leoncia de Leon, had no right to execute the affidavit of adjudication and that Honorato Salacup acquired no rights to the lands sold to him, and that neither had Benny Sampilo acquired any right to the said properties. Sampilo and Salacup filed an amended answer alleging that the complaint states no cause of action; that if such a cause exists the same is barred by the statute of limitations; that defendants are innocent purchasers for value; and that the complaint is malicious, frivolous and spurious, intended to harass and inconvenience the defendants. After trial the Court of First Instance rendered judgment for the plaintiff, Felisa Sinopera, declaring that the affidavit of adjudication Exhibit "A", the deed of sale Exhibit "B", and the deed of sale Exhibit "C", are all null and void; declaring plaintiff owner of one-half portion of the four parcels of land in question, and finally declaring that the usufructuary rights of Leoncia de Leon to said properties are terminated. The case was appealed to the Court of Appeals. This court held that the annulment of the affidavit of adjudication, Exhibit "A", by the trial court was correct but that the annulment of the deeds Exhibits "B" and "C", insofar as one-half of the properties, conveyed is concerned, and in adjudicating one-half of the same to the heirs of the deceased, is premature. Hence, it modified the judgment, declaring that Exhibits "B" and "C" are null and void only insofar as the properties thereby conveyed exceed the portion that the responds to Leoncia de Leon. Therefore, it ordered the defendants to deliver to the plaintiff, in her capacity as administratrix of the estate of Teodoro Tolete, for disposition according to the law, one-half of the lands described in the complaint, but reserved to Honorato Salacup the right to claim and secure adjudication in his favor of whatever portion of said properties may correspond to Leoncia de Leon and also his right to bring an action for the damages that he may have suffered against Leoncia de Leon and Benny Sampilo. Benny Sampilo and Honorato Salacup have appealed to this Court by certiorari and have assigned the following errors in their brief: I The Court of Appeals erred in affirming that respondent Felisa Sinopera's right of action to recover her and her co-heirs' participation to the lands in question had not prescribed at the time the action to recover was filed. II
55

BENNY SAMPILO and HONORATO SALACUP, petitioners, vs. THE COURT OF APPEALS and FELISA SINOPERA respondent. Clodualdo P. Surio for petitioners. Moises B. Ramos for respondents. LABRADOR, J.: Certiorari against decision of the Court of Appeals, Third Division, affirming with slight modification a judgment of the Court of First Instance of Pangasinan, declaring plaintiffs owners of one-half portion of four parcels of land described in the complaint, with costs. The judgment was rendered in an action instituted by Felisa Sinopera, administrative of the estate of Teodoro Tolete, to recover from defendants one-half share of the aforesaid parcels of land, which, it is alleged belong to the deceased Teodoro Tolete. According, to the facts found by the Court of Appeals, Teodoro Tolete died intestate in January, 1945. He left for parcels of land, lots Nos. 12006, 119967, 14352 and 12176 of the cadastral survey of San Manuel, Pangasinan He left as heirs his widow, Leoncia de Leon, and several nephews and nieces, children of deceased brothers and sisters. On July 25, 1946, without any judicial proceedings, his widow executed an affidavit stating that "the deceased Teodoro Tolete left no children or respondent neither ascendants or acknowledged natural children neither brother, sisters, nephews or nieces, but the, widow Leoncia de Leon, the legitimate wife of the deceased, the one and only person to inherit the above properties" (Record on Appeal, p. 9). This affidavit was registered in the Office of the Register of Deeds of Pangasinan. On the same day, she executed a deed of sale of all the above parcels of land in favor of Benny Sampilo for the sum of P10,000. This sale was also registered in the Office of the Register of Deeds of Pangasinan. On June 17, 1950, Benny Sampilo, in turn, sold the said parcels of land to Honorato Salacup for P50,000 and this sale was also registered in the Office of the Register of Deeds of Pangasinan (See Annexes "A", "B", "C", attached to the complaint). In March, 1950, Felisa Sinopera instituted proceedings for the administration of the estate of Teodoro Tolete (Special Proceeding No. 3694, Pangasinan), and having secured her appointment as administratrix, brought the present action on June 20, 1950. Notice of lis pendens was filed in the Office of the Register of Deeds and said notice was recorded on certificates of title covering the said properties on June 26,

The Court of Appeals erred in not finding that the petitioners are innocent purchasers for value. III The Court of Appeals erred in aiming the lower court's denial of petitioner's motion for new trial. In support of the first assignment of error, it is argued that as the action was instituted almost four years after the affidavit of adjudication, Exhibit "A", was registered in the Office of the Register of Deeds Of Pangasinan, the right of action of the administratrix has prescribed and lapsed because the same was not brought within the period of two years as Prescribed in Section 4 of Rule 74 of the Rules of Court, and as decided in the cases of McMicking vs. Sy Conbieng, 21 Phil., 211 and Ramirez vs. Gmur, 42 Phil., 855 869. Section 4 of Rule 74 provides, in part, as follows: SEC. 4. Liability of distributees and estate. If it shall appear at any time within two years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an heir or other has been unduly deprived of his lawful participation of the such heir or such other person may compel the settlement estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. . . . Section 1, which is mentioned in Section 4, reads as follows: SEC. 1. Extrajudcial settlement by agreement between the heirs . If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent.

It will be noted that the provision next above-quoted contains two parts, the first referring to a case in which there are two or more heirs interested in the estate of a deceased person, and the second in which there is only one heir. The section was taken from Section 596 of the old Code of Civil Procedure (Act No. 190, as amended by Act No. 2331). Said Section 596 as amended, was as follows: SEC. 596. Settlement of Certain Intestates Without Legal Proceedings . Whenever all the heirs of a person who died intestate are of lawful age and legal capacity and there are no debts due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without proceedings in court. We notice two significant provisions in Sections 1 and 4 of Rule 74. In Section 1, it is required that if there are two or more heirs, both or all of them should take part in the extrajudicial settlement. This requirement is made more imperative in the old law (Section 596, Act No. 190) by the addition of the clause "and not otherwise." By the title of Section 4, the "distributees and estate" are indicates the persons to answer for rights violated by the extrajudicial settlement. On the other hand, it is also significant that no mention is made expressly of the effect of the extrajudicial settlement on persons who did not take part therein or had no notice or knowledge thereof. There cannot be any doubt that those who took part or had knowledge of the extrajudicial settlement are bound thereby. As to them the law is clear that if they claim to have been in any manner deprived of their lawful right or share in the estate by the extrajudicial settlement, they may demand their rights or interest within the period of two years, and both the distributes and estate would be liable to them for such rights or interest. Evidently, they are the persons in accordance with the provision, may seek to remedy, the prejudice to their rights within the two-year period. But as to those who did not take part in the settlement or had no notice of the death of the decedent or of the settlement, there is no direct or express provision is unreasonable and unjust that they also be required to assert their claims within the period of two years. To extend the effects of the settlement to them, to those who did not take part or had no knowledge thereof, without any express legal provision to that effect, would be violative of the fundamental right to due process of law. In the case of Ramirez vs. Gmur, supra, cited by the appellants in this case, we held: It will be noted that while the law (see. 754) provides that the order of distribution may be had upon the application of the executor or administrator, or of a person interested in the estate, no provision is made for notice, by publication or otherwise, of such application. The
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proceeding, therefore, is to all intents and purposes ex parte. As will be seen our law is very vague and incomplete; and certainly it cannot be held that a purely ex parte proceeding, had without notice by personal service or by publication, by which the court undertakes to distribute the property of deceased persons, can be conclusive upon minor heirs who are not represented therein. The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by affidavit, is an ex parte proceeding. It cannot by any reason or logic be contended that such settlement or distribution would affect third persons who had no knowledge either of the death of the decedent or of the extrajudicial settlement or affidavit, especially as no mention of such effect is made, either directly or by implication. We have examined the two cases cited by appellants and there is no similarity at all between the circumstances on which the ruling therein had been predicated and those of the case at bar. Following the above-quoted decision of this Court in the case of Ramirez vs. Gmur, supra, we are of the opinion and so hold that the provisions of Section 4 of Rule 74, barring distributees or heirs from objecting to an extrajudicial partition after the expiration of two years from such extrajudicial partition, is applicable only (1) to persons who have participated or taken part or had notice of the extrajudicial partition, and, in addition, (2) when the provisions of Section 1 of Rule 74 have been strictly complied with, i.e., that all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians. The case at bar fails to comply with both requirements because not all the heirs interested have participated in the extrajudicial settlement, the Court of Appeals having found that the decedent left aside from his widow, nephews and nieces living at the time of his death. The next contention of appellants is that plaintiff's action is barred by the statute of limitations. The origin of the Provision (Section 4, Rule 74), upon which this contention is predicated, which is Section 596 of Act No. 190, fails to support the contention. In the first Place, there is nothing therein, or in its source which shows clearly a statute of limitations and a bar of action against third person's. It is only a bar against the parties who had taken part in the extrajudicial proceedings but not against third persons not Parties thereto. In the second place, the statute of limitations is contained in a different chapter of Act No. 190, Chapter XL, and if Section 596 of the Act had been meant to be a statute of limitations, it would naturally have been included in the chapter which defines the statute.

But even if Section 4 of Rule 74 is a statute of limitations, it is still unavailing to the defendants. The action is one based on fraud, as the widow of the deceased owner of the lands had declared in her affidavit of partition that the deceased left no nephews or niece, or other heirs except herself. Plaintiff's right which is based on fraud and which has a period of four years (Section 43, par. 3, Act no. 190; Article 1146, Civil Code), does not appear to have lapsed the action was instituted. Judicial proceedings where instituted in March, 1950 and these proceedings must have been instituted soon after the discovery of fraud. In any case, the defendants have the burden of proof as to their claim of the statute of limitations, which is their defense, and they have not proved that when the action was instituted, four years had already elapsed from the date that the interested parties had actual knowledge of the fraud. The second assignment of error, i.e., that the defendants-appellants are innocent purchasers for value was rejected as unfounded by the court of Appeals. Said court said. The claim that defendants-appellants did not have sufficient knowledge or notice of the claim of the heirs of Teodoro Tolete, deceased, over the land in question does not find support in the evidence of record. As regards defendant Benny Sampilo, it is an admitted fact that he is a nephew of Leoncia de Leon and he had been living with the latter. Both Benny Sampilo and the heirs of the deceased who are claiming the property are residents of San Manuel, Pangasinan. It is hard, therefore, to believe that Benny Sampilo did not know the existence of said heirs, and that he was not aware that they were nephews and nieces, children of the deceased brothers, of the deceased Teodoro Tolete. The fact furthermore that Benny Sampilo accompanied his aunt Leoncia de Leon to Sison, Pangasinan, when the later saw Notary Public Ladislao Villamil, who was the former's uncle, to have him prepare the affidavit of adjudication Exhibit "A", and the deed of conveyance Exhibit "B" by which on the same date she conveyed to Sampilo all the property which she had adjudicated to herself, both of which she acknowledged before said notary public, coupled with the fact that there is no sufficient showing that the consideration for the conveyance of P10,000 had in fact been paid, strengthens our belief that said Benny Sampilo knew that the deceased Teodoro Tolete had other heirs who may claim the property, and that the immediate conveyance thereof to him was a strategem concocted to defeat the former's rights. And as regards Honorato Salacup, while the claim that no notice of lis pendens appeared annotated in the certificates of title issued to Benny Sampilo when he acquired the property might be true, for he purchased the property on June 17, 1950, and the notice of lis
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pendens was noted on said certificates of title on June 26, 1950, nevertheless, he cannot claim that he was a purchaser in good faith for value of the property. It is well-settled rule in this jurisdiction that a purchaser of registered lands who has knowledge of facts which should put him upon inquiry and investigate as to the possible defects of the title of the vendor and fails to make such inquiry and investigation cannot claim that he as a purchaser in good faith for value and he had acquired a valid title thereto. Leung Yee vs. Strong Machinery Co., 37 Phil., 644; Dayao vs. Diaz, G.R. L-4106, May 29, 1952. Finding no error in the decision of the Court of Appeals, we hereby affirm it in toto, with costs against the petitioners. So ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

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PROBATE MANDATORY

G.R. No. 12184

September 27, 1917

In September, 1910, the accused, as attorney in fact (apoderado) and manager of the estate of his deceased brother, entered into an arrangement with Maria Villafranca whereby, in consideration of the conveyance of certain property to her, she relinquished in favor of the other persons interested in the estate of the deceased all her claims in respect to the same property. No further action was taken by the accused to distribute the estate to the persons in interest. In 1914 Uy Cuan, the Chinese wife, secured a special permit to enter the Philippine Islands for the period of six months to effect some settlement of the estate of her deceased husband. When she arrived in Misamis, the accused made the claim that he and his brother had been partners in the business which had been conducted originally by Joaquin Cruz. He also asserted that another brother living in China, named Chiu Tamco, was also a partner in the business though he had never been in the Philippine Islands. In a document which was then drawn up, it was agreed that Uy Cuan and her child Chiu Machay were to receive 40 per centum of the estate of the deceased, that the defendant Chiu Guimco was to receive another 40 per centum, and Chiu Tamco 20 per centum. Later upon the same visit, Uy Cuan, on behalf of herself and child, entered into a contract with the accused whereby he agreed to pay the sum of P350 per quarter by way of rental on their interest in the real estate of the decedent. No payments have, however, been made by him in compliance with this contract. In 1915 Ramon Contreras, a Chinese merchant of Cagayan, Misamis, acting on behalf of Uy Cuan and her child, began to make inquries into the affairs of the estate and on January 26, 1915, wrote a letter to the defendant Chiu Guimco, urging him to produce the will of the decedent for the institution of lawful proceedings in accordance therewith. The letter called his attention to the penalty denounce by sections 628 and 629 of the Code of Civil Procedure for withholding a will, but assured him that if he would then produce the will no penalty would be incurred. Chiu Guimco was somewhat disturbed by this letter and called in his friend Antonio Yacapin, then municipal president of Gingoog, for advice. Upon this occasion he showed Yacapin the will; and the latter says he advised the Chinaman to present the will to the court, but the latter dissented from this opinion and stated that if he should now present the will he would suffer prejudice as a long time had already elapsed. In deference to this determination of the accused a letter was written for him by Yacapin to Ramon Contreras, in which the accused asserted that the will in question had never been in his possession and that he had never seen it. A few months later the complaint in this case was filed, under section 628 of the Code of Civil Procedure, charging the defendant with the failure to produce the will
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THE UNITED STATES, plaintiff-appellee, vs. CHIU GUIMCO, defendant-appellant. Jose A. Clarin and Irureta Goyena and Recto for appellant. Attorney-General Avancea for appellee. STREET, J.: This is an appeal brought by the accused Chiu Guimco to reverse a judgment of the Court of First Instance of the Province of Misamis, subjecting him to a fine of P1,800 for a violation of section 628 of the Code of Civil Procedure and ordering him to be confined in the provincial jail until he should produce the will of his deceased brother, or until the further order of the court. It appears that the testator, Joaquin Cruz, alias Piaua, had for many years, resided in the municipality of Gingoog, Province of Misamis, where he had lived as a Chinese merchant and had amassed a considerable estate, worth possibly forty or fifty thousand pesos. On or about the year 1898, Joaquin Cruz visited China and was there married to a Chinese woman, Uy Cuan, and by her had one child. In the year 1902, after his return from China, he was married in Gingoog to a Filipina woman named Maria Villafranca. In the early part of the year 1910, Joaquin Cruz again visited China, leaving his brother, Chiu Guimco, the accused, in charge of his property and business in Gingoog as agent or attorney in fact (apoderado). While absent on this visit to China Joaquin Cruz died. Before his departure from the Philippine Islands he had executed a will before Anastacio Servillon, notary public, in which Chiu Guimco and Co-Iden were named as executors. In August 1910, Chiu Guimco and Co-Iden appeared before Anastacio Servillo; and at their request the latter drew up a petition for the probate of the will. This petition was signed by CoIden and the accused. The will itself was not produced before the notary public upon this occasion, and he was not informed by them as to who then had possession of the will. Nothing further was done in the matter of the probate of the will and Co-Iden subsequently died.

within the time required by law. The principal witness for the prosecution was Antonio Yacapin, who meanwhile had ceased to have friendly relation with the defendant. The court found the accused guilty. That the will was duly executed and that the accused and his coexecutor appeared before the notary public and procured the latter to prepare a petition for the probate of the will are facts which are not disputed. The action of the accused in possessing himself of the property of his deceased brother and in refusing to take the proper steps to distribute the estate, as well as his refusal to comply with the contract for the payment of rent to the wife and child in China, all tend to show that he was acting in bad faith; and we have no doubt that the will was in his possession at the time when Yacapin professes to have seen it. In finding the defendant guilty and imposing upon him a fine of P1,800, the Court of First Instance therefore committed no error. During the hear of this cause the trial judge formed the opinion that the accused still had possession of the will. He therefore, upon July 22, ordered the accused to produce the will in court and addressed to him, while he was testifying as a witness in his own behalf, the following words: "I serve notice on you now to produce the will of your deceased brother Joaquin Cruz or make a reasonable and satisfactory explanation as to why you cannot do so. And be back here on the 8th of August and we will take up the case again." The accused, however, failed to produce the will at the time specified in the notice, alleging that though he had searched diligently among his papers he was unable to find it; and he reiterated his previous assertion that the will had never been in his possession. The judge was not satisfied with this explanation, and upon deciding the present case against the defendant he not only imposed the fine mentioned above but also included in the judgment an order to the effect that the accused should be committed to the provincial jail until he should produce the will or until further order the court, The judge of first instance believed that he had authority to give the notice and make the order in question under section 629 of the Code of Civil Procedure which provides the testator neglects without reasonable cause to deliver the same to the court having jurisdiction, after notice by the course so to do, he may be committed to the prison of the province by a warrant issued by the court and there kept in close confinement until he delivers the will. It is our opinion that this provision can only be applied when a court is acting in the exercise of its jurisdiction over the administration of the estates of deceased persons; and where administration proceedings are not already pending, the court, before taking action under this section, should require that there be before it some petition, information, or affidavit of such character as to make action by the court under this section appropriate.

The proceedings in this case, under section 628 of the Code of the Civil Procedure, is an ordinary criminal prosecution. The act penalized in that section (628) is a special statutory offense and is properly prosecuted upon complaint or information as other criminal offenses created by law. The fact that this penal provision is contained in the Code of Civil Procedure does not make the proceeding to enforce the penalty a civil proceeding in any sense. The remedy provided in section 629 of the Code of Procedure is evidently a totally different remedy, having no relation with that provided in section 628; and it is in our opinion not permissible in a prosecution under the last mentioned section to superimpose upon the penalty of fine therein prescribed the additional penalty of imprisonment prescribed in section 629. I may further be observed that one grace difficulty in applying the remedy provided in section 629 in a prosecution under section 628 is that to enforce the production of the will b the accused at such trial would virtually compel him to convict himself, since the mere production of the will by him would be conclusive that he had possession of it as charged in the criminal complaint; and it seems probable that this would constitute an infringement of that provision of law which says that in a criminal action the defendant shall be exempt from testifying against himself. ( See Gen. Orders No. 58, sec. 15.) From what has been said it follows that the order of commitment made by the lower court remanding the accused to jail should be vacated and if subsidiary imprisonment should be imposed for insolvency the defendant shall, under the provisions of Act No. 2557, be credited with the time during which he was confined in pursuance of the order of the lower court, With this modification the judgment of the court below should be affirmed with costs against the appellant. So ordered. Arellano, C.J., Johnson and Araullo, JJ., concur.

Separate Opinions CARSON, J., concurring: I concur. I think it well, however, to indicate that I do not understand the comment in the concluding paragraphs of the prevailing opinion to amount to a ruling of this court that separate proceedings may not be instituted under the terms of section 629 of
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the Code of Civil Procedure to compel production of a will after judgment of conviction under section 628; or, that, when no criminal action is pending, commitment may not be had under section 629 in a proper case. MALCOLM, J., concurring: I concur in the resolution of the case.

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[G.R. No. L-5405. January 31, 1956.] ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C. QUINTO, Respondents.

DECISION CONCEPCION, J.: This is a petition for review by certiorari of a decision of the Court of Appeals. The pertinent facts are set forth in said decision, from which we quote: This case being the sequel to, and aftermath of, a previous litigation between the parties that reached the Supreme Court, through the former Court of Appeals, it becomes necessary to restate the essential antecedent facts to view the issues in proper perspective. For this purpose, it is important to recall that on August 26, 1931, Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit A), distributing assorted movables and a residential lot among his children, Rosario and Ernesto Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. To his second wife Augustia Posadas, the testator bequeathed, in addition to various movables, a portion of 25 hectares to be taken out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five (5) hectares in settlement of her widows usufruct. The balance of the 259 odd hectares he distributed as follows:chanroblesvirtuallawlibrary 100 hectares reserved for disposal during the testators lifetime and for payment of his debts and family expenses; 108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342 hectares by way of mejora; 21.6171 hectares to mi hija natural reconocida Rosario Guevara. Ernesto Guevara was appointed executor without bond. On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto Guevara, conveying to the latter the southern half of the 259-hectare lot heretofore mentioned, and expressly recognized Ernesto Guevara as owner of the northern half. Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied for registration of the big parcel (case No. 15174), but in view of the sale from the former to the latter, the decree was issued in the name of Ernesto Guevara exclusively and for the whole tract, a certificate of title (No. 51691 of Pangasinan) being issued in his sole name on October 12, 1933.

Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will was not filed for probate. About four years later, Rosario Guevara, claiming to be a recognized natural child of the deceased Victorino, and on the assumption that he had died intestate, brought suit against Ernesto Guevara to recover 423,492 square meters of the tract covered by certificate of title No. 51691 as the portion that should correspond to her (Rosario) by way of legitime. The case reached the former Court of Appeals in due course and was decided in Rosario Guevaras favor (Exhibit E); but upon certiorari, the Supreme Court modified the judgment in December, 1943, as follows (Exhibit F); Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one-half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latters assumption of the obligation to pay all the debts of the deceased, is hereby affirmed;ybut the judgment of said court insofar as it awarded any relief to the Respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties are hereby ordered to present the document Exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees herein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances. ( Appellants Brief, pp. 13-14.) Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on October 5, 1945, special proceedings No. 2646 in the Court of First Instance of Pangasinan for the probate of the will of Victorino Guevara. In paragraph 10 of the petition, it was alleged: 10. Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure revocado, o revocados, en cuanto a la parcela de terreno de 259 hectareas descrita en dicho testamento, por haber el testador enajenado o dispuesto intervivos de la misma en la forma mencionada en las tres decisiones supra-mencionadas; y que la solicitante pide la legalizacion de dicho testamento tan solo para los efectos del reconocimiento de hija natural hecha en dicho testamento a favor de la demandante y en obediencia al mandato de la Corte Suprema en su decision supra. (Record on Appeal, p. 5.)

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Notice of the petition having been duly published pursuant to Rule of Court 77, section 4, Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for Rosario in the former litigation, was allowed to intervene in view of his duly recorded attorneys lien. On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss the petition on the grounds that (a) the petition itself alleged that the will was revoked; (b) that whatever right to probate the parties m ay have has already prescribed (Record on Appeal, p. 14); and (c) that the purpose of the probate was solely to have Petitioner Rosario declared an acknowledged natural child of the deceased. By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss; but upon motion of reconsideration, Judge Maalac of the same court, on June 23, 1937, reconsidered and set aside the previous resolution and ordered the petition dismissed on the ground that Rosario Guevaras petition did not ask for the probate in toto of the will, contrary to the order of the Supreme Court; that her right to petition for the probate of the testament of Victorino L. Guevara had prescribed; and that her action for judicial declaration of acknowledgment had likewise prescribed. An amended petition for the probate of the will in toto and another petition to reconsider the previous order were subsequently denied; the former on the ground that there was a radical change of theory from that embodied in the original petition, and the second for the same reasons stated in the order of June 23, 1947. Rosario L. Guevara and Pedro L. Quinto thereupon brought the case on appeal to this Court, assigning no less than twenty (20) alleged errors committed by the court below. (Guevara vs. Guevara, C.A. G. R. No. 5416-R, promulgated December 26, 1951; chan roblesvirtualawlibrarysee Appendix to brief for the Petitioner-Appellant, pp. 1-6.) The dispositive part of the decision of the Court of Appeals reads as follows: The order of dismissal of the petition for probate is reversed and the court of origin ordered to reinstate the petition, and to hear and decide whether the will of Victorino Guevara, deceased, should be allowed to probate. Costs against Appellees in both instances. (Ibid.) In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following questions, to wit: (a) Did Respondents herein duly perfect their appeal from the decision of the Court of First Instance of Pangasinan? (b) Did the Court of Appeals have jurisdiction to entertain said appeal? (c) Is the petition for probate of the alleged will of the deceased Victorino L. Guevara barred by the statute of limitations?

(1) With reference to the first question, Petitioner has submitted the following statement 1 of the steps taken since June 23, 1947, date of the resolution of Judge Maalac, dismissing the petition for probate of the last will and testament of Victoriano L. Guevara: June 23, 1947 Date of Resolution appealed from. July 14, 1947 Date of Joint Petition for Reconsideration filed by Appellants. July 25, 1947 Date of Amended petition for probate of will. July 25, 1947 Motion for admission of Amended Petition. August 2, 1947 Appellants motion to postpone hearing on petition for reconsideration and motion for admission of Amended Petition. August 10, 1947 Appellants urgent motion for continuance of hearing on joint petition for Reconsideration as well as Motion to Admit Amended Petition. August 25, 1947 Motion for extension of time to file memorandum. September 1, 1947 Memorandum for Appellants submitted. October 7, 1947 Memorandum for Appellee submitted. October 14, 1947 Appellants petition for ten (10) days to file reply memorandum. November 1, 1947 Appellants petition to file reply memorandum on or before November 9, 1947. November 8, 1947 Appellants petition for extension to file reply memorandum.
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November 18, 1947 Verified reply of Appellant Rosario Guevara. November 24, 1947 Reply memorandum of Pedro C. Quinto filed. January 12, 1948 Court denies both petitions of July 14 and 25, 1947. January 24, 1948 Notice of appeal to Supreme Court and petition for thirty (30) days extension by Appellant Rosario Guevara. January 29, 1948 Order granting petition for extension. February 1, 1948 Another notice of appeal to Supreme Court and motion for thirty (30) days extension by Appellant Rosario Guevara. February 28, 1948 Appellants ex-parte petition for further extension. March 6, 1948 Original joint Record on Appeal filed. (This was so defective and incomplete it consisted of mere disjointed sheets of paper intercalated with one another and was a mere token record on appeal.) March 8, 1948 Another joint petition for reconsideration of Appellants. March 11, 1948 Appellees objection to record on appeal. March 17, 1948 Verified reply of Appellants to objection. March 18, 1948 Appellees objection to joint petition for reconsideration. June 19, 1948 Appellants memorandum in support of the joint petition for reconsideration .

July 23, 1948 Order of denial of Joint Petition and disapproving original record on appeal as incomplete and giving Appellants within 10 days from notice. July 26, 1948 Amended Notice of Appeal to the Court of Appeals instead of to the Supreme Court. July 28 and 29, 1948 Appellants received copy of order of July 23, 1948. August 1, 1948 Petition for five (5) days extension to file amended Record on Appeal filed by Appellant Pedro C. Quinto. August 10, 1948 Appellants Joint Petition for last extension of two (2) days. August 10, 1948 Filing of amended joint record on appeal. (This is also again so defective and incomplete as to constitute another mere token record on appeal as required by the Rules.) August 24, 1948 Appellants petition for ten (10) days period to reply to objection, if any was to be filed. August 27, 1948 Appellees objection to amended record on appeal. September 8, 1948 Appellants reply to objection. October 20, 1948 Court order sustaining objection and gives Appellants fifteen (15) days from notice to redraft record on appeal. November 3, 1948 Appellants joint petition to reconsider order of disapproval of Amended Record on Appeal. November 3, 1948
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Appellants file re-amended joint record on appeal. (This again disregarded the orders of the court regarding the contents of the record on appeal.). November 22, 1948 Appellee objected to approval of re-amended joint record on appeal and prayed that order appealed from be declared final. March 22, 1949 Court sustains Appellees objection to record on appeal denying petition for reconsideration and Appellants given fifteen (15) days from notice to satisfy requirements of courts previous order. April 8, 1949 Appellants file in Supreme Court petition for certiorari and mandamus attacking order of June 23, 1947. April 11, 1949 Appellant Quintos petition for fifteen (15) days extension to file Re-amended Record on Appeal. April 12, 1949 Supreme Court denies petition off-hand. April 16, 1949 Appellant Rosario Guevaras motion for fifteen (15) days extension for the same purpose. April 21, 1949 Court granted extension prayed for to expire May 1, 1948. April 21, 1949 Second Re-Amended Record on Appeal filed. June 11, 1949 Appellees opposition to Second Re-Amended Record on Appeal. June 29, 1949 Appellants joint notice of hearing on Second Re -Amended Record on Appeal for July 12, 1949. July 10, 1949 Appellants joint reply to opposition.

July 12, 1949 Action on record on appeal deferred on petition of Atty. Quinto. September 3, 1949 Appellant Quintos notice of hearing on Second Re-Amended Record on Appeal for September 28, 1949. September 28, 1949 Order of court approving same. December 8, 1949 Clerk of lower court sends records to appellate court. December 10, 1949 Appellant Quintos motion ex-parte to have records sent up to appellate court. (Petitioner-Appellants Brief, pp. 41-47.) Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with the Court of Appeals, a motion praying that the appeal be dismissed: (a) Because due to the Appellants many and repeated dilatory tactics, the prosecution of their appeal has been unduly and unreasonably delayed for a period which should strike anyone as totally without justification. The resolution appealed from was dictated by the lower court on June 23, 1947, so that a period of over two (2) years and nine (9) months until the date of this writing has elapsed, thus establishing a record-holding delay which should not be sanctioned by the Courts as prejudicial to the administration of justice. (b) Because Appellants, in violation of Rule 48, section 3, did not diligently prosecute their appeal by failing to have the record sent up to this Honorable Court within thirty (30) days from the time their Second Re-amended Record on Appeal was approved on September 28, 1949; and it was only so transmitted on December 8, 1949, that is after the lapse of two (2) months and ten (10) days. (c) Because, at any rate, the first Amended Joint Record on Appeal was filed beyond the extension granted by the Court and, consequently, the Appellants right to appeal has lapsed. (Exhibit A, pp. 1-2). The Court of Appeals denied said motion to dismiss for the following reasons: A preliminary question was posed by the Appellee who prayed for the dismissal of the appeal on the ground that Petitioners-Appellants had unreasonably delayed the perfection of the appeal, as the Second Re-amended Joint Record on Appeal was not certified to this Court until December, 1949. After considering the voluminous
65

record, and the arguments of both parties, we are of the opinion that both parties have contributed to the delay with lengthy memoranda, and repeated motions and objections. Moreover, the points in question are important enough to deserve adequate consideration upon the merits. Wherefore, the motion to dismiss the appeal should be and is hereby, overruled and denied. (Appendix to Brief for the Petitioner-Appellant, pp. 6- 7.) It is urged by Petitioner herein that Respondents appeal from the decision of the Court of First Instance of Pangasinan had not been duly perfected because: (a) the original of the record on appeal did not comply with the Rules of Court; (b) the record on appeal was filed after the lapse of the reglementary period; (c) there has been an unprecedented delay in the filing of a satisfactory record on appeal; and (d) the appeal should be deemed abandoned for violation of Rule 48, section 3, of the Rules of Court. The first ground is predicated upon the fact that, instead of transcribing the motions, petitions, orders and resolutions incorporated in the original record on appeal, Respondents herein merely attached to the original copy of said record on appeal, filed with the Court of First Instance of Pangasinan, their own copies of said motions, petitions, orders and resolutions. Accordingly, the copy of said record on appeal furnished to Petitioner herein did not contain or enclose the aforementioned parts of the record. It appears, however, that the Respondents were given several extensions of time within which to comply with the pertinent provisions of the Rules of Court and that Respondents eventually did so. There being no question about the authority of the court of first instance to grant said extensions of time, it is clear that the first ground, relied upon by Petitioner herein, is untenable. In support of the second ground, it is alleged: (a) that the original record on appeal was filed by Pedro C. Quinto only, and does not inure to the benefit of Rosario Guevara; and (b) that Respondents had lost their right to appeal by the lapse of the reglementary period. As regards the first proposition, Petitioner asserts that Respondent Pedro C. Quinto had withdrawn his appearance as counsel for Respondent Rosario Guevara; that Quinto had, thereafter, intervened in the case in his own behalf, in order to enforce his attorneys lien, as former counsel for Rosario Guevara; that, consequently, the original record on appeal and the petitions for extension of time to file an amended record on appeal, filed by Pedro C. Quinto, were good only insofar as he is concerned, and cannot profit Rosario Guevara, she having ceased to be his client long before the filing of said original record on appeal and petitions for extension of time; that this interest in the case arises from his rights as former attorney for Respondent Rosario Guevara, and, as such, is subordinate to, and dependent upon, the interest therein of said Rosario Guevara and the success of her claim therein; and that, her appeal not having been duly

perfected, his appeal must be deemed to have no legal effect. There is no merit in this pretense, for it appears, at the foot of said record on appeal, that Pedro C. Quinto had filed the same, for himself as Appellant and in behalf of Rosario Guevara, who authorized him to perfect the appeal for both Appellants, and that similar statements were made in the body and at the foot of said petitions for extension of time. It is clear, therefore, that the aforementioned record on appeal and motions should be deemed submitted, also, by Respondent Rosario Guevara. The position then held by Pedro C. Quinto, as special prosecutor in the office of the Solicitor General, did not nullify his aforesaid acts on behalf of Rosario Guevara. Besides, said acts would seem to have been performed by him, more as attorney-infact than as counsel for Rosario Guevara, and this merely in connection with the perfection of her appeal. We do not find therein anything objectionable, either legally or morally, in the light of the circumstances surrounding the case. The second proposition is based upon the following reasons: (a) The aforementioned record on appeal and motions for extension of time filed by Quinto on behalf of Rosario Guevara did not inure to her benefit, for which reason the reglementary period to appeal had expired before the perfection of her appeal. For the reasons already adverted to, this argument is clearly untenable. (b) The petition for reconsideration filed by Respondents on July 14, 1947, did not suspend the running of the period to perfect the record on appeal, because said petition did not comply with the provisions of Rule 37, section 1, of the Rules of Court, reading as follows: Within thirty days after notice of the judgment in an action, the aggrieved party may move the trial court to set aside the judgment end grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result; (c) Because excessive damages have been awarded, or the evidence was insufficient to justify the decision, or it is against the law. Said petition for reconsideration appears, however, to be predicated, in effect, upon the ground that the evidence is insufficient to justify the decision of the court of first instance, and that said decision is contrary to law. It partakes, therefore, of the nature of a motion for new trial, stating specifically the reasons in support
66

thereof, and, hence, it suspended the period to appeal until the determination of said motion. Relative to the alleged unprecedented delay in the filing of a satisfactory record on appeal, we agree with the finding of the Court of Appeals to the effect that the delay was due to the acts of the Respondents, as well as of the Petitioner herein, for both had asked several postponements and extensions of time, filed memoranda and reply memoranda, and raised or provoked a number of other issues or incidents which necessarily delayed the perfection of the appeal. Obviously, Petitioner should not be allowed to profit by said delay, to which he had actively contributed. 1 Lastly, Petitioner maintains that, although the record on appeal had been approved on September 28, 1949, it was not forwarded to the Court of Appeals until December 8, 1949. Section 3 of Rule 48 of the Rules of Court provides: If the record on appeal is not received by the Court of Appeals within thirty days after the approval thereof, the Appellee may, upon notice to the Appellant, move the court to grant an order directing the clerk of the lower court forthwith to transmit such record on appeal or to declare the same abandoned for failure to prosecute. Considering that Respondents herein were not notified of the approval of the record on appeal until December 8, 1949, on which date the record on appeal was forwarded to the Court of Appeals, and that the aforementioned provision of the Rules of Court does impose upon said court the mandatory duty to declare the appeal abandoned for failure to prosecute, we believe that no error was committed in giving due course to the appeal and that the same has been duly perfected. (2) Did the Court of Appeals have jurisdiction to try the case, on appeal from the decision of the court of first instance? Petitioner maintains the negative, upon the ground that the appeal involved only questions of law. This is not correct, for the very motion for reconsideration adverted to above, indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in question was in the possession of Respondent Rosario Guevara and whether Respondent Quinto had been authorized by her to perfect the appeal on her behalf. At any rate, the case is now before us and, upon examination of the record and consideration of all the issues therein raised, we are of the opinion that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner set forth in the decision of the Court of Appeals, the review of which is sought by herein Appellant. (3) The last question for determination in this case is whether or not the petition for probate of the will of Victorino L. Guevara is barred by the statute of limitations, considering that the testator died on September 27, 1933, and that the petition for

probate of said will was filed twelve (12) years later, or, to be exact, on October 5, 1945. The Court of Appeals resolved the question in the negative, upon the following grounds: We are of the opinion that the Court below was in error when it declared that the petition for probate of the will of Victorino Guevara was barred by prescription. The provision of Article 756 of the old Civil Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190), point out that the presentation of a decedents will to the competent court has always been deemed by our law as more of a duty than a right, and the neglect of such obligation carries with it the corresponding penalty and it is inconsistent with that policy that the court should refuse to admit wills to probate, without inquiry into their validity. The authority given to testators to dispose freely of a portion of their estate would be imperfectly safeguarded, unless adequate measures were provided by the state to assure that the wishes of the deceased would be carried out. Because the decedent may no longer act to have his testamentary dispositions duly executed, the state authority must take over the opposite vigilance and supervision, so that free testamentary disposition does not remain a delusion and a dream. This was expressly recognized by the Supreme Court in its previous decision, G. R. No. 48840 (Exhibit E) when it said: cralaw We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others. (Italics supplied) In holding the statute of limitations applicable to the probate of wills, the court below failed to notice that its doctrine was destructive of the right of testamentary disposition and violative of the owners right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy and whim of custodians and heirs interested in their suppression. The lower court would in effect abdicate the tutelary power that passed to the Republic from the former sovereigns, that potestad suprema que en mi reside para velar por el puntual cumplimiento de las
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ultimas voluntades, asserted as one of the royal prerogatives in the Real Cedula of March 18, 1776. It is not without purpose that Rule of Court 77 prescribes that any person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. Taken from the Code of Procedure of California, this provision has been interpreted as meaning that the statute of limitations has no application to probate of wills. In the case of In re Humes Estate, 179 Calif. 338, 176 Pac. 681, the California Supreme Court ruled that: The chapter of the Code relating to the probate of wills does not provide for opposition to such probate on the ground of the bar of the statute of limitations, but, in effect, excludes it from the category of grounds allowed as a basis for such opposition. Section 1299 declares that any person interested in the estate may at any time after the death of the testator, petition the court having jurisdiction to have the will proved. This implies that there is no arbitrary time limit. As additional reasons, the same Court stated: cralaw Section 1317 declares: If the court is satisfied, upon the proof taken or from the facts found by the jury that the will was duly executed and that the will testator at the time of its execution was of sound and disposing mind and not acting under duress menace fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to the will. This excludes the bar of the statute of limitation from consideration as one of the matters which may be shown in opposition to the probate. This is further emphasized by section 1341, which, in substance, declares that, if upon the verdict of the jury the facts mentioned in section 1317 as aforesaid appear to be established, the court must admit the will to probate. Section 1314 thus makes it imperative that the court shall admit the will to probate if the execution is proven and the grounds of opposition authorized by section 1312 are not established. This clearly implies that no grounds of opposition other than those enumerated in section 1312 may be set up, and it leaves no place for the application of the statute of limitations. It is further to be observed that, notwithstanding the positive and comprehensive language of sections 343 and 369, if taken literally, there can be no doubt that they cannot apply to all special proceedings of a civil nature. Proceedings for a change of name, or in arbitration, or for voluntary dissolution of a corporation, or for guardianship, or for a married woman to become a sole trader, are all within the definition of the phrase, and each is enumerated, classed, and defined as such proceeding by the Code. If the statute of limitations applied, it would begin to run

against such proceedings as soon as the right to institute them accrued. Yet from the very nature of these proceedings it is obvious that neither of them could be subject to such limitation. This construction of these Code provisions is confirmed by the long -continued and uniform practice and the universal understanding of the bench and bar of the state on the subject. xxx xxx xxx

Action to quiet title frequently involve wills of persons who have died many years before the action was begun. The section contemplates that such a will, although not yet probated, may be construed in the action and may be afterwards probated, and it clearly shows that the Legislature did not understand that the right to probate such will would be barred if the testator had died more than four years before the petition for probate was filed. This uniform practice and understanding of the bench and bar, and of the legislative department of the state also, is a strong argument to the effect that the statute of limitations does not apply to such proceedings. The authorities on the effect of such long acquiescence are numerous. The Statute of Limitations upon which the court below has relied, sections 38 to 50 of the old Code of Civil Procedure, Act 190, undertakes to fix limits for the filing of civil actions, but none for special proceedings of which probate is admittedly one. The distinction is not purely verbal, but based on differences that make the limitation to actions inapplicable to special proceedings. In t his regard, the Supreme Court of New York has adequately remarked (In re Canfields Will, 300 NYS 502): A Respondent in a private proceeding owes no legal duty or obligation to the proponent as such, wherefore it is impossible for him to violate such non-existent obligation. Furthermore such a proceeding is not instituted for the vindication of any personal right to the proponent. The subject-matter is therefore wholly absent which could give rise to any cause of action against any Respondent therein. The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act. One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the
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devolutionary wishes of a deceased person (Matter of Watsons Will, 262 N.Y. 284, 294, 186 N.E. 787; Matter of Marrimans Estate, 124 Misc. 320, 325, 208 N.Y.S. 672; Foley, S. affirmed 217 App. Div. 733, 216 N.Y.S. 842; Matter of Lensmans Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drakes Estate, 160 Misc. 587, 598, 290 N.Y.S. 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburghs Estate, 164 Misc. 295, 296, 298 N.Y.S. 219. A determination , therefore, that the mere non-action of a person upon whom no legal duty rested in this regard, could have the effect of subverting the wishes of one who was no longer able to protect his own unquestionable rights, would strike at the very foundation of all conceptions of justice as administered in probate courts. These decisions are of high persuasive value (Cu vs. Republic, G. R. L -3018, July 18, 1951); they represent the trend of authority (57 Am. Jur. 585), and enable us to conclude that reason and precedent reject the applicability of the Statute of Limitations to probate proceedings, because these are not exclusively established in the interest of the surviving heirs, but primarily for the protection of the testators expressed wishes, that are entitled to respect as an effect of his ownership and right of disposition. If the probate of validly executed wills is required by public policy, as declared by the Supreme Court in the previous case, G.R. 48840 (Exhibit E), the state could not have intended the statute of limitations to defeat that policy. It is true, as ruled by the trial court, that the rights of parties should not be left hanging in uncertainty for periods of time far in excess of the maximum period of ten years allowed by law; but the obvious remedy is for the other interested persons to petition for the production of the will and for its probate, or to inflict upon the guilty party the penalties prescribed by Rule 76 or declare the unworthiness of the heir under the Civil Code for concealing or suppressing the testament; but not to dismiss the petition for probate, however belatedly submitted, and thereby refuse sanction to testamentary dispositions executed with all the formalities prescribed by law, incidentally prejudicing also those testamentary heirs who do not happen to be successors ab intestato. That in this particular case the appealed rule may not work injustice would not excuse its adoption as a general norm applicable to all cases. It is likewise reasonable to assume that if the Supreme Court had considered the ten-year limitation applicable to probate proceedings, it would not have ordered the parties on December 29, 1943 to present the document Exhibit A to the proper court for probate in accordance with law, because the ten years from the death of the testator expired in September of that same year, two months before the decision. It is safe to assume that the high Court would not order a useless step. The reasoning that the phrase in accordance with law was a qualification signifying if still legally possible, appears to be far -fetched and unjustified. The plain import of

the words employed by the high Court is that the probate should follow the procedure provided for the purpose. xxx xxx xxx

The other reasons advanced by the court a quo in support of its order dismissing the petition are also untenable. The allegation contained in paragraph 10 of the original petition, that the will, or its testamentary dispositions, had been de jure revoked in so far as the parcel of 259 hectares described in said will is concerned, does not justify the finding that the probate would be pointless. What is alleged is a partial revocation, only as to the parcel of land affected; but as previously shown, the will disposed of other property besides that one. And even granting that the next allegation to the effect that Plaintiff sought to probate only for the purposes of her acknowledgment as natural child in said will, constitutes an averm ent that the will had been fully revoked, the same would at the most constitute a conclusion or inference that the lower court was not bound to admit. Because the Appellant claimed or believed that the revocation of the will as to the large parcel of land, constituted a total revocation of the testament is no reason why the court should concur in the same belief or conclusion, especially when the will itself, appended to the petition, showed that there were other properties and other heirs or legatees, and the trial court had before it the decision of the Supreme Court ordering the filing of the will for its probate because, as stated in its decision, such a step was enjoined by law and public policy. Moreover, the defect, if any, incurred in failing to ask for the probate in toto of the will, was subsequently cured and corrected in the amended petition, where not only the objectionable statements were eliminated, but others added indicating the existence of a partible estate. Assuming that the original petition violated the order of the Supreme Court in so far as it did not ask for the allowance of the entire will, the court below erred in dismissing the petition, for it thereby sanctioned further disobedience to the order of the superior court. Once again, it must be repeated that the order of dismissal failed to take into account that the case involved not only the interests of Rosario Guevara, and those of the Appellee Ernesto Guevara and the other legatees, but specially the express desires of the testator; and that the protection and defense of the latter developed upon the court itself, since no one else made any move to enforce them. Even if the other heirs had failed to show interest in the case (a fact not properly inferable from their non-intervention in the case, because the order of publication of the petition only called for those interested to appear to contest the allowance and not to support it) (Rec. on App., p. 7), and even if the other heirs had already received their shares, the order refusing the probate remains indefensible. If the other heirs were not interested, there remained the wishes of the testator to be supported and protected, if validly expressed. If the heirs had distributed the
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estate, the distribution was illegal and improper unless the will be first probated. The Supreme Court so ruled in its previous decision (G. R. 48840) heretofore quoted. Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court: first, because the law expressly provides that no will shall pass either real or personal estate unless it is proved and allowed in the proper court; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testators right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for revindicacion or partition. From whatever angle the case is viewed, a hearing on the allowance of the will is unavoidable. The persistent, albeit obnoxious, attempts of Rosario Guevara to sidetrack the will are not remedied by dismissing the petition for probate of will, and allowing Ernesto to retain a greater interest than that intended by the testator. (Appendix to brief for the Petitioner-Appellant, pp. 7-15, 17-20.) We are fully in accord with these findings which we adopt as ours. In view of the foregoing, the decision appealed from is hereby affirmed, with the costs of this instance against the Petitioner. Padilla, Reyes, A., Jugo, Bautista Angelo and Labrador, JJ., concur.

Endnotes: 1. The record shows that the petitions for postponement and extension of time, and other motions filed by Petitioner in the court of first instance had delayed the perfection of the appeal by over 100 days. 1. This statement does not include some petitions filed by Petitioner, which likewise delayed the perfection of the appeal.

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G.R. No. L-12207

December 24, 1959

that it has not complied with the formalities prescribed by law; rather she objects to its intrinsic validity or to the legality of the provisions of the will. We hold that such opposition cannot be entertained in this proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law, much less if the purpose of the opposition is to show that the oppositor is an acknowledged natural child who allegedly has been ignored in the will for issue cannot be raised here but in a separate action. This is especially so when the testator, as in the present case, is still alive and has merely filed a petition for the allowance of his will leaving the effects thereof after his death.lawphi1.net This is in line with our ruling in Montaano vs. Suesa, 14 Phil., 676, wherein we said: "The authentication of the will decides no other questions than such as touch upon the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of a will. It does not determine nor even by implication prejudge the validity or efficiency of the provisions; that may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely un-affected, and may be raised even after the will has been authenticated." On the other hand, "after a will has been probated during the lifetime of a testator, it does not necessarily mean that he cannot alter or revoke the same before he has had a chance to present such petition, the ordinary probate proceedings after the testator's death would be in order" (Report of the Code Commission, pp. 53-54).The reason for this comment is that the rights to the succession are transmitted from the moment of the death of the decedent (Article 777, new Civil Code.). It is clear that the trial court erred in entertaining the opposition and in annulling the portion of the will which allegedly impairs the legitime of the oppositor on the ground that, as it has found, she is an extraneous matter which should be treshed out in a separate action. Wherefore, the order appealed from is set aside, without pronouncement as to costs. Paras, C.J., Bengzon, Padilla, Labrador, Concepcion, Endencia, Barrera and Gutierrez David., JJ., concur.

JUAN PALACIOS, petitioner-appellant, vs. MARIA CATIMBANG PALACIOS, oppositor-appellee. Augusto Francisco and Vicente Reyes Villavicencio for appellant. Laureano C. Alano and Enrique A. Amador for appellee.

BAUTISTA ANGELO, J.: Juan Palacios executed his last will and testament on June 25, 1946 and availing himself of the provisions of the new Civil Code, he filed on May 23, 1956 before the Court of First Instance of Batangas a petition for its approval. In said will, he instituted as his sole heirs his natural children Antonio C. Palacios and Andrea C. Palacios. On June 21, 1956, Maria Catimbang filed a opposition to the probate of the will alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in said will thus impairing here legitime. After the presentation of petitioner's evidence relative to the essential requisites and formalities provided by law for the validity of a will, the court on July 6, 1956 issued an order admitting the will to probate. The court, however, set a date for the hearing of the opposition relative to the intrinsic validity of the will and, after proper hearing concerning this incident, the court issued another order declaring oppositor to be the natural child of petitioner and annulling the will insofar as it impairs her legitime, with costs against petitioner. From this last order, petitioner gave notice of his intention to appeal directly to the Supreme Court, and accordingly, the record was elavated to this Court. It should be noted that petition instituted the present proceeding in order to secure the probate of his will availing himself of the provisions of Article 838, paragraph 2, of the new Civil Code, which permit a testator to petition the proper court during his lifetime for the allowance of his will, but to such petition on Maria Catimbang filed an opposition alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in the will thus impairing her object to the probate of the will insofar as it due execution is concerned or on the ground

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G.R. No. L-23638

October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners, vs. ISMAELA DIMAGIBA, respondent. ---------------------------------------G.R. No. L-23662 October 12, 1967

After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958, found that the will was genuine and properly executed; but deferred resolution on the questions of estoppel and revocation "until such time when we shall pass upon the intrinsic validity of the provisions of the will or when the question of adjudication of the properties is opportunely presented." Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial, insisting that the issues of estoppel and revocation be considered and resolved; whereupon, on July 27, 1959, the Court overruled the claim that proponent was in estoppel to ask for the probate of the will, but "reserving unto the parties the right to raise the issue of implied revocation at the opportune time." On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the sole purpose of submitting an inventory of the estate, and this was done on February 9, 1960. On February 27, 1962, after receiving further evidence on the issue whether the execution by the testatrix of deeds of sale of the larger portion of her estate in favor of the testamentary heir, made in 1943 and 1944, subsequent to the execution of her 1930 testament, had revoked the latter under Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court resolved against the oppositors and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of sale." Whereupon, the oppositors elevated the case to the Court of Appeals. The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had become final for lack of opportune appeal; that the same was appealable independently of the issue of implied revocation; that contrary to the claim of oppositors-appellants, there had been no legal revocation by the execution of the 1943 and 1944 deeds of sale, because the latter had been made in favor of the legatee herself, and affirmed the decision of the Court of First Instance. Oppositors then appealed to this Court. In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree of the Court of First Instance allowing the will to probate had become final for lack of appeal; (b) whether or not the order of the Court of origin dated July 27, 1959, overruling the estoppel invoked by oppositors-appellants had likewise become final; and (c) whether or not the 1930 will of Benedicta de los Reyes had been impliedly revoked by her execution of deeds of conveyance in favor of the proponent on March 26, 1943 and April 3, 1944.
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MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners, vs. ISMAELA DIMAGIBA, respondent. Jose D. Villena for petitioners. Antonio Barredo and Exequiel M. Zaballero for respondent. REYES, J.B.L., Actg. C.J.: The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of the Court of Appeals (in CA-G. R. No. 31221-R) affirming that of the Court of First Instance of Bulacan, in Special Proceeding No. 831 of said Court, admitting to probate the alleged last will and testament of the deceased, and overruling the opposition to the probate. It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to the Court of First Instance a petition for the probate of the purported will of the late Benedicta de los Reyes, executed on October 22, 1930, and annexed to the petition. The will instituted the petitioner as the sole heir of the estate of the deceased. The petition was set for hearing, and in due time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the probate asked. Grounds advanced for the opposition were forgery, vices of consent of the testatrix, estoppel by laches of the proponent and revocation of the will by two deeds of conveyance of the major portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944, but which conveyances were finally set aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L-5620 (unpublished).

As to the first point, oppositors-appellants contend that the order allowing the will to probate should be considered interlocutory, because it fails to resolve the issues of estoppel and revocation propounded in their opposition. We agree with the Court of Appeals that the appellant's stand is untenable. It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Montaano vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As such, the probate order is final and appealable; and it is so recognized by express provisions of Section 1 of Rule 109, that specifically prescribes that "any interested person may appeal in special proceedings from an order or judgment . . . where such order or judgment: (a) allows or disallows a will." Appellants argue that they were entitled to await the trial Court's resolution on the other grounds of their opposition before taking an appeal, as otherwise there would be a multiplicity of recourses to the higher Courts. This contention is without weight, since Rule 109, section 1, expressly enumerates six different instances when appeal may be taken in special proceedings. There being no controversy that the probate decree of the Court below was not appealed on time, the same had become final and conclusive. Hence, the appellate courts may no longer revoke said decree nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the decree was correctly dismissed. The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation become superfluous in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect the will itself, but merely the particular devise or legacy. Only the total and absolute revocation can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra.). As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the presentation and probate of a will are requirements of public policy, being primarily designed to protect the testator's, expressed wishes, which are entitled to respect as a consequence of the decedent's ownership and right of

disposition within legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation (Revised Rule 75). It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled. The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1950 (Art. 869 of the Code of 1889), which recites: Art. 957. The legacy or devise shall be without effect: (1) . . . . (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; xxx xxx xxx

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is a presumed change of intention on the part of the testator. As pointed out by Manresa in his Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p. 743) Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se desprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella, dando lugar a la presuncion de que ha cambiado de voluntad, y no quiere que el legado se cumpla. Mas para que pueda presumirse esa voluntad, es necesario que medien actos del testador que la indiquen. Si la perdida del derecho sobre la cosa ha sido independiente de la voluntad del testador, el legado podraquedar sin efecto, mas no en virtud del numero 2 del articulo 869, que exige siempre actos voluntarios de enajenacion por parte del mismo testador. As observed by the Court of Appeals, the existence of any such change or departure from the original intent of the testatrix, expressed in her 1930 testament, is
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rendered doubtful by the circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba , L5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful whether in conveying the property to her legatee, the testatrix merely intended to comply in advance with what she had ordained in her 1 testament, rather than an alteration or departure therefrom. Revocation being an exception, we believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the Philippines, does not apply to the case at bar. Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that it was the moral influence, originating from their confidential relationship, which was the only cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-5618 and L-5620). If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing her own free will and intent in making the conveyances. Hence, it can not be concluded, either, that such conveyances established a decision on her part to abandon the original legacy. True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 2 324-325) the "nullity of the contract" can not be taken in an absolute sense. Certainly, it could not be maintained, for example, that if a testator's subsequent alienation were avoided because the testator was mentally deranged at the time, the revocatory effect ordained by the article should still ensue. And the same thing could be said if the alienation (posterior to the will) were avoided on account of physical or mental duress. Yet, an alienation through undue influence in no way differs from one made through violence or intimidation. In either case, the 3 transferor is not expressing his real intent, and it can not be held that there was in fact an alienation that could produce a revocation of the anterior bequest.

In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby affirmed. Costs against appellants Reyes and Fernandez. So ordered. Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.

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G.R. No. 115925

August 15, 2003

SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, vs. COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO, respondents. CARPIO, J.: The Case This is a petition for review of the Decision dated 31 January 1994 of the Court of Appeals ordering the Register of Deeds of Metro Manila, District III, to place TCT No. (232252) 1321 in the name of respondent Remedios S. Eugenio-Gino. The Decision ordered the Register of Deeds to cancel the names of petitioners Ricardo Pascual and Consolacion Sioson ("petitioners") in TCT No. (232252) 1321. The Decision also directed petitioners to pay respondent moral and exemplary damages and attorneys fees. The Facts Petitioner Consolacion Sioson ("CONSOLACION") and respondent Remedios S. Eugenio-Gino ("REMEDIOS") are the niece and granddaughter, respectively, of the late Canuto Sioson ("CANUTO"). CANUTO and 11 other individuals, including his sister Catalina Sioson ("CATALINA") and his brother Victoriano Sioson ("VICTORIANO"), were co-owners of a parcel of land in Tanza, Navotas, Metro Manila. The property, known as Lot 2 of Plan Psu 13245, had an area of 9,347 square meters and was covered by Original Certificate of Title No. 4207 issued by the Register of Deeds of Rizal. CATALINA, CANUTO, and VICTORIANO each owned 2 an aliquot 10/70 share or 1,335 square meters of Lot 2. On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots (Lot Nos. 2-A to 2-H) through Subdivision Plan Psd 34713 which the Director of Lands approved on 30 May 1952. Lot No. 2-A, with an area of 670 square meters, and Lot No. 2-E, with an area of 2,000 square meters, were placed under CANUTOs 3 name. Three other individuals took the remaining lots. On 26 September 1956, CANUTO and CONSOLACION executed a Kasulatan ng 4 Bilihang Tuluyan ("KASULATAN"). Under the KASULATAN, CANUTO sold his 10/70 share in Lot 2 in favor of CONSOLACION for P2,250.00. The KASULATAN, notarized by Notary Public Jose T. de los Santos of Navotas, provides:
1

Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang gulang, kasal kay Raymunda San Diego, at naninirahan sa Tanza, Navotas, Rizal, sa bisa at pamamagitan ng kasulatang ito ay nagpapatunay at nagpapatibay: 1. Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, Plano Psu-13245), na nasa sa nayon ng Tanza, Municipio ng Navotas, Provincia ng Rizal, at ang descripcion o pagkakakilanlan ng nasabing lote ay nakasaad sa Certificado Original, de Titulo No. 4207 ng Oficina ng Registrador de Titulos ng Rizal, gaya ng sumusunod: xxxx 2. Na dahil at alang-alang sa halagang Dalawang Libo Dalawang Daan at Limampung Piso (P2,250.00), salaping Pilipino, na sa akin ay ibinayad ni CONSOLACION SIOSON, kasal kay Ricardo S. Pascual, may sapat na gulang, mamamayang Pilipino, at naninirahan sa Dampalit, Malabon, Rizal at ang pagkakatanggap ng nasabing halaga ay aking inaamin at pinatutunayan, ay aking ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang tuluyan at walang pasubali a favor [sic] sa nasabing si CONSOLACION SIOSON, sa kanyang tagapagmana at mapaglilipatan ang lahat ng aking titulo, karapatan at kaparti na binubuo ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng loteng descrito or tinutukoy sa itaas nito. (Emphasis supplied) CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E. She later declared the land for taxation purposes and paid the corresponding 5 real estate taxes. On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and 6 Beatriz, executed a joint affidavit ("JOINT AFFIDAVIT") affirming the KASULATAN in favor of CONSOLACION. They also attested that the lots their father had sold to CONSOLACION were Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads: KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga Pilipino, kapuwa may sapat na gulang at naninirahan, ang una sa Tanza, Navotas at ang ikalawa sa Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng isang
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ganap na panunumpa alinsunod sa batas, ay malayang nagsasalaysay ng mga sumusunod: Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSON na nagmamay-ari ng 10/70 bahaging hindi hati (10/70 porcion proindiviso) ng isang lagay na lupa (Lote No. 2, plano Psu-13245), na nasa Nayon ng Tanza, Navotas, Rizal, at ang mga palatandaan nito ay nasasaad sa Certificado Original de Titulo No. 4207 ng Tanggapan ng Registrador de Titulos ng Rizal; Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si Canuto Sioson ang kaniyang buong bahagi na 10/70 sa nasabing Lote No. 2, kay CONSOLACION SIOSON, may-bahay ni Ricardo S. Pascual, na taga Dampalit, Malabon, Rizal, sa halagang P2,250.00, salaping pilipino, noong ika 16 [sic] ng Septiembre, 1956, sa pamamagitan ng isang KASULATAN NG BILIHANG TULUYAN na pinagtibay sa harap ng Notario Publico Jose T. de los Santos nang pechang nabanggit, sa Navotas, Rizal, (Doc. No. 194, Page No. 84; Book No. IV; Series of 1956); Na ang nasabing lupa na ipinagbili ng aming Ama kay Consolacion Sioson ni Pascual, ay nakikilala ngayong mga Lote No. 2-A at Lote 2-E ng Plano de Subdivision Psd-34713; na pinagtibay ng Assistant Director of Lands noong Mayo 30, 1952; Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming Ama kay Consolacion Sioson ni Pascual ng ngayoy nakikilalang Lote No. 2-A at Lote No. 2-E ng Plano de Subdivision Psd-34713. (Emphasis supplied) On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT AFFIDAVIT with the Office of the Register of Deeds of Rizal ("Register of Deeds"). Based on these documents, the Register of Deeds issued to CONSOLACION Transfer Certificate of Title No. (232252) 1321 covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713 with a total area of 2,670 square meters. On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and her spouse Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for "Annulment or Cancellation of Transfer Certificate [of Title] and Damages." REMEDIOS claimed that she is the owner of Lot Nos. 2-A and 2-E because CATALINA 7 devised these lots to her in CATALINAs last will and testament ("LAST WILL") dated

29 May 1964. REMEDIOS added that CONSOLACION obtained title to these lots through fraudulent means since the area covered by TCT (232252) 1321 is twice the size of CANUTOs share in Lot 2. REMEDIOS prayed for the cancellation of CONSOLACIONs title, the issuance of another title in her name, and the payment to her of damages. Petitioners sought to dismiss the complaint on the ground of prescription. Petitioners claimed that the basis of the action is fraud, and REMEDIOS should have filed the action within four years from the registration of CONSOLACIONs title on 28 October 1968 and not some 19 years later on 4 February 1988. REMEDIOS opposed the motion, claiming that she became aware of CONSOLACIONs adverse title only in February 1987. CONSOLACION maintained that she had timely filed her complaint within the four-year prescriptive on 4 February 1988. In its order of 28 April 1988, the trial court denied petitioners motion to dismiss. The trial court held that the reckoning of the prescriptive period for filing REMEDIOS complaint is evidentiary in nature and must await the presentation of the parties evidence during the trial. During the pre-trial stage, REMEDIOS clarified that she was claiming only CATALINAs 10/70 share in Lot 2, or 1,335 square meters, 8 which constitute of the area of Lot Nos. 2-A and 2-E. The trial of the case then ensued. The Ruling of the Trial Court On 26 November 1990, the trial court rendered judgment dismissing the case and ordering REMEDIOS to pay petitioners P10,000 as attorneys fees and the cost of suit. The trial court held that the action filed by REMEDIOS is based on fraud, covered by the four-year prescriptive period. The trial court also held that REMEDIOS knew of petitioners adverse title on 19 November 1982 when REMEDIOS testified against petitioners in an ejectment suit petitioners had filed against their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of REMEDIOS had already prescribed when she filed it on 4 February 1988. The trial court further ruled that REMEDIOS has no right of action against petitioners because CATALINAs LAST WILL from which REMEDIOS claims to derive her title has not been admitted to probate. Under Article 838 of the Civil Code, no will passes real or personal property unless it is allowed in probate in accordance with the Rules of Court. The dispositive portion of the trial courts decision provides:

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WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiff, ordering: 1. The dismissal of this case;

Hence, this petition. The Issues Petitioners allege the following assignment of errors:

2. The plaintiff to pay the defendants the sum of Ten Thousand (P10,000.00) Pesos as and for attorneys fees; and 3. The plaintiff to pay the costs of suit. REMEDIOS appealed to the Court of Appeals. The Ruling of the Court of Appeals On 31 January 1994, the Court of Appeals rendered judgment reversing the decision of the trial court. The appellate court held that what REMEDIOS filed was a suit to enforce an implied trust allegedly created in her favor when CONSOLACION fraudulently registered her title over Lot Nos. 2-A and 2-E. Consequently, the prescriptive period for filing the complaint is ten years, not four. The Court of Appeals counted this ten-year period from 19 November 1982. Thus, when REMEDIOS filed her complaint on 4 February 1988, the ten-year prescriptive period had not yet expired. The appellate court held that CATALINAs unprobated LAST WILL does not prec lude REMEDIOS from seeking reconveyance of Lot Nos. 2-A and 2-E as the LAST WILL may subsequently be admitted to probate. The dispositive portion of the appellate courts ruling provides: WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The Registry of Deeds of Rizal or Metro Manila, District III, is ordered to place Transfer Certificate of Title No. (232252) 1321 under the name of Remedios S. Eugenio-Gino as executor of the will of Catalina Sioson and cancel the names of the Spouses Ricardo Pascual and Consolacion Sioson inscribed over said title as owners of the covered lot. Defendants-appellees spouses Ricardo Pascual and Consolacion Sioson are ordered to pay plaintiff-appellant Remedios S. Eugenio-Gino moral damages in the amount of P50,000.00, exemplary damages of P20,000[.00] and attorneys 10 fees of P20,000.00 and P500.00 per appearance. Petitioners sought reconsideration of the ruling. However, the Court of Appeals denied their motion in its order dated 15 June 1994.
9

I. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENTS CAUSE OF ACTION IS NOT BARRED BY PRESCRIPTION WHICH FINDING IS MANIFESTLY CONTRARY TO LAW AND THE APPLICABLE DECISIONS OF THIS HONORABLE COURT. II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT DOES NOT HAVE ANY TITLE AND HAS UTTERLY FAILED TO PROVE ANY TITLE TO THE LOTS INVOLVED IN THIS CASE, AND IN ORDERING THE CANCELLATION OF THE CERTIFICATE OF TITLE OF PETITIONERS. III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION AND IN GROSS VIOLATION OF THE RULES OF COURT IN ORDERING THE ENTIRE PROPERTY COVERED BY TRANSFER CERTIFICATE OF TITLE NO. (232252) 1321 TO BE PLACED IN THE NAME OF PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE RESPONDENT IS LIMITED ONLY TO ONE-HALF (1/2) PORTION OF THE PROPERTY, AND THE OTHER HALF THEREOF UNQUESTIONABLY BELONGS TO PETITIONERS. IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS ACTED FRAUDULENTLY AND IN BAD FAITH IN SECURING THEIR CERTIFICATE OF TITLE TO THE PROPERTY INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO PAY PRIVATE RESPONDENTS MORAL DAMAGES, 11 EXEMPLARY DAMAGES AND ATTORNEYS FEES. The pivotal questions are: (1) whether prescription bars the action filed by REMEDIOS, and (2) whether REMEDIOS is a real party-in-interest. The Ruling of the Court The petition has merit. The Action is Barred by Prescription

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The trial court held that the action filed by REMEDIOS is one based on fraud. REMEDIOS action seeks to recover real property that petitioners allegedly acquired through fraud. Consequently, the trial court held that the action prescribes in four years counted from REMEDIOS actual discovery of petitioners adverse title. The trial court concluded that REMEDIOS belatedly filed her suit on 4 February 1988 because she actually knew of petitioners adverse title since 19 November 1982. On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit to enforce an implied trust. REMEDIOS had ten years counted from actual notice of the breach of trust, that is, the assertion of adverse title, within which to bring her action. The appellate court held that REMEDIOS seasonably filed her complaint on 4 February 1988 because she allegedly discovered petitioners adverse title only on 19 November 1982. What REMEDIOS filed was an action to enforce an implied trust but the same is already barred by prescription. Prescriptive Period is 10 Years Counted From Registration of Adverse Title The four-year prescriptive period relied upon by the trial court applies only if the fraud does not give rise to an implied trust, and the action is to annul a voidable 12 contract under Article 1390 of the Civil Code. In such a case, the four-year 13 prescriptive period under Article 1391 begins to run from the time of discovery of the mistake, violence, intimidation, undue influence or fraud. In the present case, REMEDIOS does not seek to annul the KASULATAN. REMEDIOS does not assail the KASULATAN as a voidable contract. In fact, REMEDIOS admits the validity of the sale of 1,335 square meters of land under the KASULATAN. However, REMEDIOS alleges that the excess area of 1,335 meters is not part of the sale under the KASULATAN. REMEDIOS seeks the removal of this excess area from TCT No. (232252) 1321 that was issued to CONSOLACION. Consequently, REMEDIOS action is for "Annulment or Cancellation of Transfer Certificate [of Title] 14 and Damages." REMEDIOS action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was without basis. In effect, REMEDIOS asserts that CONSOLACION acquired the additional 1,335 square meters through mistake or fraud and thus CONSOLACION should be considered a trustee of an implied trust for the benefit of the rightful

owner of the property. Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years under Articles 1389 and 1391. It is now well-settled that the prescriptive period to recover property obtained by 15 fraud or mistake, giving rise to an implied trust under Article 1456 of the Civil 16 Code, is ten years pursuant to Article 1144. This ten-year prescriptive period begins to run from the date the adverse party repudiates the implied trust, which 17 repudiation takes place when the adverse party registers the land. REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October 1968. Unquestionably, REMEDIOS filed the complaint late thus warranting its dismissal. As 18 the Court recently declared in Spouses Alfredo v. Spouses Borras, Following Caro, we have consistently held that an action for reconveyance based on an implied trust prescribes in ten years. We went further by specifying the reference point of the ten-year prescriptive period as the date of the registration of the deed or the issuance of the title. The Court of Appeals Reckoning of Prescriptive Period from Actual Notice of Adverse Title Not Justified In holding that the action filed by REMEDIOS has not prescribed, the Court of 20 Appeals invoked this Courts ruling in Adille v. Court of Appeals. In Adille, the Court reckoned the ten-year prescriptive period for enforcing implied trusts not from registration of the adverse title but from actual notice of the adverse title by the cestui que trust. However, the Court, in justifying its deviation from the general rule, explained: [W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned from the date of the registration of the property, we x x x are not prepared to count the period from such date in this case. We note the petitioners sub rosa efforts to get hold of the property exclusively for himself beginning with his fraudulent misrepresentation in his unilateral affidavit of extrajudicial settlement that he is "the only heir and child of his mother Feliza["] with the consequence that he was able to secure title in his name also. (Emphasis supplied)
19

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Such commission of specific fraudulent conduct is absent in the present case. Other than asserting that petitioners are guilty of fraud because they secured title to Lot Nos. 2-A and 2-E with an area twice bigger than what CANUTO allegedly sold to CONSOLACION, REMEDIOS did not present any other proof of petitioners fraudulent conduct akin to Adille. CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the KASULATAN executed by CANUTO and the JOINT AFFIDAVIT executed by his surviving children, one of whom, Felicidad, is the mother of REMEDIOS. The KASULATAN referred to the sale of CANUTOs 10/70 share in Lot 2 without specifying the area of the lot sold. The JOINT AFFIDAVIT referred to the "Plano de Subdivision Psd-34713" without also specifying the area of the lot sold. However, Subdivision Plan Psd 34713, as certified by the Assistant Director of Lands on 30 May 1952, showed an area of 2,670 square meters in the name of CANUTO. Based on these documents, the Register of Deeds issued TCT No. (232252) 1321 to CONSOLACION covering an area of 2,670 square meters. REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as 21 certified by the Assistant Director of Lands. Moreover, REMEDIOS has not contested petitioners claim that CANUTO doubled his share in Lot 2 by acquiring 22 VICTORIANOs share. Plainly, the increase in the area sold from 1,335 square meters to 2,670 square meters is a glaring mistake. There is, however, no proof whatsoever that this increase in area was the result of fraud. Allegations of fraud in actions to enforce 23 implied trusts must be proved by clear and convincing evidence. Adille, which is 24 anchored on fraud, cannot apply to the present case. At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS complaint. As executrix of CATALINAs LAST WILL, REMEDIOS submitted to the then Court of First Instance of Caloocan in Special Proceedings Case No. C-208 the inventory of all the property comprising CATALINAs estate, which included Lot Nos. 2-A and 2-E. In a motion dated 7 November 1977, CONSOLACION sought the exclusion of these lots from the inventory, invoking her title over them. REMEDIOS was served a copy of the motion on 8 November 1977 against which she filed an opposition. Nevertheless, the trial court overruled REMEDIOS objection. In its order of 3 January 1978, the trial court granted CONSOLACIONs m otion and ordered the exclusion of Lot Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling.

REMEDIOS thus had actual notice of petitioners adverse title on 8 November 1977. Even if, for the sake of argument, the ten-year prescriptive period begins to run upon actual notice of the adverse title, still REMEDIOS right to file this suit has prescribed. REMEDIOS had until 11 November 1987 within which to file her complaint. When she did so on 4 February 1988, the prescriptive period had already lapsed. Respondent is Not a Real Party-in-Interest Not only does prescription bar REMEDIOS complaint. REMEDIOS is also not a real party-in-interest who can file the complaint, as the trial court correctly ruled. The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in the name of the real party-in-interest who is the party who stands to 25 benefit or suffer from the judgment in the suit. If one who is not a real party-in26 interest brings the action, the suit is dismissible for lack of cause of action. REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its one-half portion) on the devise of these lots to her under CATALINAs LAST WILL. However, the trial court found that the probate court did not issue any order admitting the LAST WILL to probate. REMEDIOS does not contest this finding. Indeed, during the 27 trial, REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending. Article 838 of the Civil Code states that "[N]o will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." This Court has interpreted this provision to mean, "until admitted to probate, [a 28 will] has no effect whatever and no right can be claimed thereunder." REMEDIOS anchors her right in filing this suit on her being a devisee of CATALINAs LAST WILL. However, since the probate court has not admitted CATALINAs LAST WILL, REMEDIOS has not acquired any right under the LAST WILL. REMEDIOS is thus without any cause of action either to seek reconveyance of Lot Nos. 2-A and 2-E or to enforce an implied trust over these lots. The appellate court tried to go around this deficiency by ordering the reconveyance of Lot Nos. 2-A and 2-E to REMEDIOS in her capacity as executrix of CATALINAs LAST WILL. This is inappropriate because REMEDIOS sued petitioners not in such capacity but as the alleged owner of the disputed lots. Thus, REMEDIOS alleged in her complaint: 3. The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who died single and without any child of her own and who, during her lifetime, was the
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owner of those two (2) parcels of land located at Tanza, Navotas, Rizal (now Metro Manila), formerly covered by Original Certificate of Title No. 4207 of the Registry of Deeds for the Province of Rizal, x x x. 4. The plaintiff, aside from being the compulsory heir of the deceased CATALINA SIOSON, has sole and exclusive claim of ownership over the above-mentioned two (2) parcels of land by virtue of a will or "Huling Habilin at Pagpapasiya" executed by Catalina Sioson on May 19, 1964 before Notary Public Efren Y. Angeles at Navotas, Rizal, in which document the deceased Catalina Sioson specifically and exclusively bequeathed to the plaintiff the above-mentioned Lots 2-A and 2-E of Psd-34713 approved by the Bureau of Lands on May 30, 1952. Copy of the "Huling Habilin at Pagpapasiya" consisting of four (4) pages is hereto attached and forms an integral part hereof as Annex "A;" 5. Sometime on or about February, 1987, plaintiff discovered that the abovementioned Lots 2-A and 2-E of subdivision plan Psd-34713 are now registered or titled in the name of the defendants under Transfer Certificate of Title No. (232252) 1321 of the Registry of Deeds of Rizal, now Metro-Manila District III. Copy of the title is hereto attached and forms an integral part hereof as Annex "B;" 6. Upon further inquiry and investigation, plaintiff discovered that the defendants were able to obtain title in their name of the said parcels of land by virtue of a "Kasulatan ng Bilihang Tuluyan" allegedly executed by Canuto Sioson on September 26, 1956 before Notary Public Jose [T.] de los Santos of Navotas, Metro-Manila. Copy of the said document is hereto attached and forms an integral part hereof as Annex "C;" 7. The plaintiff also discovered that although x x x the original sale did not specify the parcels of land sold by Canuto Sioson, the defendants submitted an alleged Affidavit executed by Felicidad Sioson and Beatriz Sioson identifying the lots sold by Canuto Sioson to the defendants as Lots 2-A and 2-E of subdivision plan Psd-34713. Copy of the Affidavit dated October 3, 1968 on the basis of which the present Transfer Certificate of Title No. (232252) 1321 was issued to the defendants is hereto attached and forms an integral part hereof as Annex "D;" 8. The defendants are clearly guilty of fraud in presenting the aforementioned Affidavit (Annex "D") to the Register of Deeds as the basis of their claim to Lots 2-A and 2-E in view of the fact that the parcels sold to them by Canuto Sioson, assuming there was such a sale, were different parcels of land, Lots 2-A and 2-E being the properties of the late Catalina Sioson who bequeathed the same to the plaintiff.

xxxx 12. Because of the defendants fraudulent actuations on this matter, plaintiff suffered and continious [sic] to suffer moral damages arising from anxiety, shock and wounded feelings. Defendants should also be assessed exemplary damages by way of a lesson to deter them from again committing the fraudulent acts, or acts of similar nature, by virtue of which they were able to obtain title to the parcels of 29 land involved in this case x x x. (Emphasis supplied) Indeed, all throughout the proceedings below and even in her Comment to this petition, REMEDIOS continued to pursue her claim as the alleged owner of one-half of the disputed lots. Other Matters Raised in the Petition The Court deems it unnecessary to pass upon the other errors petitioners assigned concerning the award of damages and attorneys fees to REMEDIOS. Such award assumes that REMEDIOS is a real party-in-interest and that she timely filed her complaint. As earlier shown, this is not the case. WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals dated 31 January 1994 and its Resolution dated 15 June 1994 are SET ASIDE. The complaint filed by respondent Remedios Eugenio-Gino, dated 2 February 1988 is DISMISSED. SO ORDERED. Davide, Jr., C.J., Vitug, Ynares-Santiago and Azcuna, JJ., concur.

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