G.R. No.

L-4963

January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA,
DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of five (5) parcels of land situated
in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del
Rosario and her four children named Concepcion, Conrado, Dominador, and Faustino, surnamed
Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands
involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson.
However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria
del Rosario took possession illegally of said lands thus depriving her of their possession and
enjoyment.
Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and
her husband, the late Faustino Nebreda, executed a public document whereby they agreed to
separate as husband and wife and, in consideration of their separation, Maria Uson was given a
parcel of land by way of alimony and in return she renounced her right to inherit any other
property that may be left by her husband upon his death (Exhibit 1).
After trial, at which both parties presented their respective evidence, the court rendered decision
ordering the defendants to restore to the plaintiff the ownership and possession of the lands in
dispute without special pronouncement as to costs. Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda,
former owner of the five parcels of lands litigated in the present case. There is likewise no
dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-law wife
of the late Faustino Nebreda with whom she had four illegitimate children, her now codefendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity
of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in
1945 the five parcels of land he was seized of at the time passed from the moment of his death to
his only heir, his widow Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The
property belongs to the heirs at the moment of the death of the ancestor as completely as if the
ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs.
Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria
Uson over the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question
because she expressly renounced to inherit any future property that her husband may acquire and
leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot
be entertained for the simple reason that future inheritance cannot be the subject of a contract nor
can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs.
Osorio and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants are illegitimate
children of the late Faustino Nebreda and under the old Civil Code are not entitled to any
successional rights, however, under the new Civil Code which became in force in June, 1950,
they are given the status and rights of natural children and are entitled to the successional rights
which the law accords to the latter (article 2264 and article 287, new Civil Code), and because
these successional rights were declared for the first time in the new code, they shall be given
retroactive effect even though the event which gave rise to them may have occurred under the
prior legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides indeed that rights which
are declared for the first time shall have retroactive effect even though the event which gave rise
to them may have occurred under the former legislation, but this is so only when the new rights
do not prejudice any vested or acquired right of the same origin. Thus, said article provides that
"if a right should be declared for the first time in this Code, it shall be effective at once, even
though the act or event which gives rise thereto may have been done or may have occurred under
the prior legislation, provided said new right does not prejudice or impair any vested or acquired
right, of the same origin." As already stated in the early part of this decision, the right of
ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her
late husband and this is so because of the imperative provision of the law which commands that
the rights to succession are transmitted from the moment of death (Article 657, old Civil Code).
The new right recognized by the new Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over
the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in state, in a
gesture of pity or compassion, agreed to assign the lands in question to the minor children for the
reason that they were acquired while the deceased was living with their mother and Maria Uson
wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from
the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of
the nature of a donation of real property, inasmuch as it involves no material consideration, and
in order that it may be valid it shall be made in a public document and must be accepted either in
the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential
formality has not been followed, it results that the alleged assignment or donation has no valid
effect.
WHEREFORE, the decision appealed from is affirmed, without costs.

G.R. No. L-6622

July 31, 1957

Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DE BORJA,

administrator-appellant,
vs.
JUAN DE BORJA, ET AL., oppositors-appellees.
E. V. Filamor for appellant.
Juan de Borja for himself and co-appellees.
FELIX, J.:
The case. Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, are legitimate
children of Marcelo de Borja who, upon his demise sometime in 1924 or 1925, left a
considerable amount of property. Intestate proceedings must have followed, and the pre-war
records of the case either burned, lost or destroyed during the last war, because the record shows
that in 1930 Quintin de Borja was already the administrator of the Intestate Estate of Marcelo de
Borja.
In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of Francisco de Borja,
was appointed and took over as administrator of the Estate. Francisco de Borja, on the other
hand, assumed his duties as executor of the will of Quintin de Borja, but upon petition of the
heirs of said deceased on the ground that his interests were conflicting with that of his brother's
estate he was later required by the Court to resign as such executor and was succeeded by
Rogelio Limaco, a son-in-law of Quintin de Borja.
It also appears that on February 16, 1940, at the hearing set for the approval of the statement of
accounts of the late administrator of the Intestate Estate of Marcelo de Borja, then being opposed
by Francisco de Borja, the parties submitted an agreement, which was approved by the Court
(Exh. A). Said agreement, translated into English, reads as follows:
1. All the accounts submitted and those that are to be submitted corresponding to this year
will be considered approved;
2. No heir shall claim anything of the harvests from the lands in Cainta that came from
Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva Ecija;
3. That the amounts of money taken by each heir shall be considered as deposited in
conjunction with the other properties of the intestate and shall form part of the mass
without drawing any interest;
4. That it shall be understood as included in this mass the sum of twelve thousand pesos
(P12,000) that the sisters Crisanta and Juliana de Borja paid of their own money as part

of the price the lands and three thousand pesos (P3,000) the price of the machinery for
irrigation;
5. The right, interests or participation that the deceased Quintin de Borja has or may have
in Civil Case No. 6190 of the Court of First Instance of Nueva Ecija, shall be likewise
included in the total mass of the inheritance of the Intestate;
6. Not only the lands in Tabuatin but also those in Cainta coming from the now deceased
Exequiel Ampil shall also from part of the total mass of the inheritance of the Intestate of
the late Marcelo de Borja;
7. Once the total of the inheritance of the intestate is made up as specified before in this
Agreement, partition thereof will be made as follows:
From the total mass shall be deducted in case or in kind, Twelve Thousand Pesos
(P12,000) that shall be delivered to Da. Juliana de Borja and Da. Crisanta de Borja in
equal shares, and the rest shall be divided among the four heirs, i. e., Don Francisco de
Borja, the heirs of Quintin de Borja, Da. Juliana de Borja, and Da. Crisanta de Borja, in
equal parts. (TRANSLATION)
The Intestate remained under the administration of Crisanto de Borja until the then outbreak of
the war. From then on and until the termination of the war, there was a lull and state of inaction
in Special proceeding No. 2414 of the Court of First Instance of Rizal, Pasig branch (In the
Matter of the Intestate Estate of Marcelo de Borja), until upon petition filed by Miguel B. Dayco,
as administrator of the estate of his deceased mother, Crisanta de Borja, who is one of heirs, for
reconstitution of the records of this case, the Court on December 11, 1945, ordered the
reconstitution of the same, requiring the administrator to submit his report and a copy of the
project of partition.
On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for the period
ranging from March 1 to December 22, 1945, which according to the heirs of Quintin de Borja
were so inadequate and general that on February 28, 1946, they filed a motion for specification.
On April 30, 1946, they also filed their opposition to said statement of accounts alleging that the
income reported in said statement was very much less than the true and actual income of the
estate and that the expenses appearing therein were exaggerated and/or not actually incurred, and
prayed that the statement of accounts submitted by the administrator be disapproved.
The administrator later filed another report of his administration, dated August 9, 1949,
corresponding to the period lapsed from December 23, 1945, to July 31, 1949, showing a cash
balance of P71.96, but with pending obligation amounting to P35,415.
On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de Borja, filed their
opposition to the statement of accounts filed by the administrator on the ground that same was
not detailed enough to enable the interested parties to verify the same; that they cannot
understand why the Intestate could suffer any loss considering that during the administration of
the same by Quintin de Borja, the Estate accumulated gains of more than P100,000 in the form

of advances to the heirs as well as cash balance; that they desired to examine the accounts of Dr.
Crisanto de Borja to verify the loss and therefore prayed that the administrator be ordered to
deposit with the Clerk of Court all books, receipts, accounts and other papers pertaining to the
Estate of Marcelo de Borja. This motion was answered by the administrator contending that the
Report referred to was already clear and enough, the income as well as the expenditures being
specified therein; that he had to spend for the repairs of the properties of the Estate damaged
during the Japanese occupation; that the allegation that during the administration of Quintin de
Boria the Estate realized a profit of P100,000 was not true, because instead of gain there was
even a shortage in the funds although said administrator had collected all his fees (honorarios)
and commissions corresponding to the entire period of his incumbency; that the obligations
mentioned in said report will be liquidated before the termination of the proceedings in the same
manner as it is done in any other intestate case; that he was willing to submit all the receipts of
the accounts for the examination of the interested parties before the Clerk or before the Court
itself; that this Intestate could be terminated, the project of partition having been allowed and
confirmed by the Supreme Court and that the Administrator was also desirous of terminating it
definitely for the benefit of all the parties.
On September 14, 1949, the administrator filed another statement of accounts covering the
period of from March 1, 1945, to July 31, 1949, which showed a cash balance of P71.95, with
pending obligations in the sum of P35,810.
The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their opposition said
statement of accounts and prayed the Court to disapprove the same and to appoint an account to
go over the books of the administrator and to submit a report thereon as soon as possible. The
heir Juliana de Borja also formally offered her objection to the approval of the accounts
submitted by the administrator and prayed further that said administrator be required to submit a
complete accounting of his administration of the Estate from 1937 to 1949. On the other hand,
Francisco de Borja and Miguel B. Dayco, as the only heir of the deceased Crisanta de Borja,
submitted to the Court an agreement to relieve the administrator from accounting for the period
of the Japanese occupation; that as to the accounting from 1937 to 1941, they affirmed their
conformity with the agreement entered into by all the heirs appearing in the Bill of Exceptions of
Juliana de Borja; and they have no objection to the approval of the statement of accounts
submitted by the administrator covering of the years 1945 to 1949.
On December 6, 1949, the administrator, answered the opposition of the heir Juliana de Borja,
alleging that the corresponding statement of accounts for the years 1937, 1938, 1939, 1940 and
1941 were presented and approved by the Court before and during the Japanese occupation, but
the records of the same were destroyed in the Office of the Clerk of that Court during the
liberation of the province of Rizal, and his personal records were also lost during the Japanese
occupation, when his house was burned; that Judge Pea who was presiding over the Court in
1945 impliedly denied the petition of heirs to require him to render an accounting for the period
from 1942 to the early part of 1945, for the reason that whatever money obtained from the Estate
during said period could not be made the subject of any adjudication it having been declared fiat
money and without value, and ordered that the statement of accounts be presented only for the
period starting from March 1, 1945. The administrator further stated that he was anxious to
terminate this administration but some of the heirs had not yet complied with the conditions

imposed in the project of partition which was approved by the Supreme Court; that in accordance
with said partition agreement, Juliana de Borja must deliver to the administrator all the jewelry,
objects of value, utensils and other personal belongings of the deceased spouses Marcelo de
Borja and Tircila Quiogue, which said heir had kept and continued to retain in her possession;
that the heirs of Quintin de Borja should deliver to the administrator all the lands and a document
transferring in favor of the Intestate the two parcels of land with a total area of 71 hectares of
cultivated land in Cabanatuan, Nueva Ecija which were in the possession of said heirs, together
with the house of Feliciana Mariano Vda. de Sarangaya, which were the objects of Civil Case
No. 6190 mentioned in Paragraph 11 of the project of partition; that as consequence of the said
dispossession the heirs of Quintin de Borja must deliver to the administrator the products of the
71 hectares of land in Cabanatuan, Nueva Ecija, and the rentals of the house of Feliciana
Mariano or else render to the Court an accounting of the products of these properties from the
time they took possession of the same in 1937 to the present; that there was a pending obligation
amounting to P36,000 as of September 14, 1949, which the heirs should pay before the
properties adjudicated to them would be delivered. The Court, however, ordered the
administrator on December 10, 1949, to show and prove by evidence why he should not be
accounts the proceeds of his administration from 1937.
Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry belonging to
the deceased spouses Marcelo de Borja and Tarcilla Quiogue or any other personal belonging of
said spouses, and signified her willingness to turn over to the administrator the silver wares
mentioned in Paragraph III of the project of partition, which were the only property in her care,
on the date that she would expect the delivery to her of her share in the inheritance from her
deceased parents.
On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba and Olimpia,
all surnamed de Borja, as heirs of Quintin de Borja, filed a motion for the delivery to them of
their inheritance in the estate, tendering to the administrator a document ceding and transferring
to the latter all the rights, interests and participation of Quintin de Borja in Civil Case No. 7190
of the Court of First Instance of Nueva Ecija, pursuant to the provisions of the project of
Partition, and expressing their willingness to put up a bond if required to do so by the Court, and
on July 18, 1950, the Court ordered the administrator to deliver to Marcela, Juan, Saturniana,
Eufracia, Jacoba and Olimpia, all surnamed de Borja, all the properties adjudicated to them in the
Project of Partition dated February 8, 1944, upon the latter's filing a bond in the sum of P10,000
conditioned upon the payment of such obligation as may be ordered by the Court after a hearing
on the controverted accounts of the administrator. The Court considered the fact that the heirs
had complied with the requirement imposed by the Project of Partition when they tendered the
document ceding and transferring the rights and interests of Quintin de Borja in the
aforementioned lands and expressed the necessity of terminating the proceedings as soon as
practicable, observing that the Estate had been under administration for over twenty-five years
already. The Court, however, deferred action on the petition filed by the special administratrix of
the Intestate Estate of Juliana de Borja until after compliance with the conditions imposed by the
project of partition. But on July 20, 1950, apparently before the properties were delivered to the
heirs, Francisco de Borja and Miguel B. Dayco filed a motion informing the Court that the two
parcels of land located in Cabanatuan, Nueva Ecija, produced some 21,300 cavans of palay,
amounting to P213,000 at P10 per cavan, which were enjoyed by some heirs; that the

administrator Crisanto de Borja had not taken possession of the same for circumstances beyond
his control; and that there also existed the sum of P70,204 which the former administrator,
Quintin de Borja, received from properties that were redeemed, but which amount did not come
into the hands of the present, administrator because according to reliable information, same was
delivered to the heir Juliana de Borja who deposited it in her name at the Philippine National
Bank. It was, therefore prayed that the administrator be required to exert the necessary effort to
ascertain the identity of the person or persons who were in possession of the same amount and of
the value of the products of the lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover the
same for the Intestate Estate.
On July 28, 1950, the special administratrix of the estate of Juliana de Borja, then deceased, filed
an answer to the motion of these two heirs, denying the allegation that said heir any product of
the lands mentioned from Quintin de Borja, and informed the Court that the Mayapyap property
had always been in the possession of Francisco de Borja himself and prayed the court that the
administrator be instructed to demand all the fruits and products of said property from Francisco
de Borja.
On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said motion of
Francisco de Borja and Miguel B. Dayco on the ground that the petition was superfluous because
the present proceeding was only for the approval of the statement of accounts filed by the
administrator; that said motion was improper because it was asking the Court to order the
administrator to perform what he was duty bound to do; and that said heirs were already barred
or stopped from raising that question in view of their absolute ratification of and assent to the
statement of accounts submitted by the administrator.
On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de Borja in the
project of Partition were finally delivered to the estate of said heir upon the filing of a bond for
P20,000. In that same order, the Court denied the administrator's motion to reconsider the order
of July 18, 1950, requiring him to deliver to the heirs of Quintin de Borja the properties
corresponding to them, on the ground that there existed no sufficient reason to disturb said order.
It also ruled that as the petition of Francisco de Borja and Miguel B. Dayco made mention of
certain properties allegedly belonging to the Intestate, said petition should properly be
considered to gather with the final accounts of the administrator.
The administrator raised the matter by certiorari to this Tribunal, which was, docketed as G.R.
No. L-4179, and on May 30, 1951, We rendered decision affirming the order complained of,
finding that the Juan de Borja and sisters have complied with the requirement imposed in the
Project of Partition upon the tender of the document of cession of rights and quit-claim executed
by Marcela de Borja, the administratrix of the Estate of Quintin de Borja, and holding that the
reasons advanced by the administrator in opposing the execution of the order of delivery were
trivial.
On August 27, 1951, the administrator filed his amended statement of accounts covering the
period from March 1, 1945, to July 31, 1949, which showed a cash balance of P36,660. An
additional statement of accounts filed on August 31, 1961 for the period of from August 1, 1949,

to August 31, 1951, showed a cash balance of P5,851.17 and pending obligations in the amount
of P6,165.03.
The heirs of Quintin de Borja again opposed the approval of the statements of accounts charging
the administrator with having failed to include the fruits which the estate should have accrued
from 1941 to 1951 amounting to P479,429.70, but as the other heirs seemed satisfied with the
accounts presented by said administrator and as their group was only one of the 4 heirs of
Intestate Estate, they prayed that the administrator be held liable for only P119,932.42 which was
1/4 of the amount alleged to have been omitted. On October 4, 1951, the administrator filed a
reply to said opposition containing a counterclaim for moral damages against all the heirs of
Quintin de Borja in the sum of P30,000 which was admitted by the Court over the objection of
the heirs of Quintin de Borja that the said pleading was filed out of time.
The oppositors, the heirs of Quintin de Borja, then filed their answer to the counterclaim denying
the charges therein, but later served interrogatories on the administrator relative to the averments
of said counterclaim. Upon receipt of the answer to said interrogatories specifying the acts upon
which the claim for moral damages was based, the oppositors filed an amended answer
contending that inasmuch as the acts, manifestations and pleadings referred to therein were
admittedly committed and prepared by their lawyer, Atty. Amador E. Gomez, same cannot be
made the basis of a counterclaim, said lawyer not being a party to the action, and furthermore, as
the acts upon which the claim for moral damages were based had been committed prior to the
effectivity of the new Civil Code, the provisions of said Code on moral damages could not be
invoked. On January 15, 1952, the administrator filed an amended counterclaim including the
counsel for the oppositors as defendant.
There followed a momentary respite in the proceedings until another judge was assigned to
preside over said court to dispose of the old case pending therein. On August 15, 1952, Judge
Encarnacion issued an order denying admission to administrator's amended counterclaim
directed against the lawyer, Atty. Amador E. Gomez, holding that a lawyer, not being a party to
the action, cannot be made answerable for counterclaims. Another order was also issued on the
same date dismissing the administrator's counterclaim for moral damages against the heirs of
Quintin de Borja and their counsel for the alleged defamatory acts, manifestation and utterances,
and stating that granting the same to be meritorious, yet it was a strictly private controversy
between said heirs and the administrator which would not in any way affect the interest of the
Intestate, and, therefore, not proper in an intestate proceedings. The Court stressed that to allow
the ventilation of such personal controversies would further delay the proceedings in the case
which had already lagged for almost 30 years, a situation which the Court would not
countenance.
Having disposed of these pending incidents which arose out of the principal issue, that is, the
disputed statement of accounts submitted by the administrator, the Court rendered judgment on
September 5, 1952, ordering the administrator to distribute the funds in his possession to the
heirs as follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 to Francisco de Borja;
P314.99 to the Estate of Juliana de Borja and P314.99 to Miguel B. Dayco, but as the latter still
owed the intestate the sum of P900, said heirs was ordered to pay instead the 3 others the sum of
P146.05 each. After considering the testimonies of the witnesses presented by both parties and

the available records on hand, the Court found the administrator guilty of maladministration and
sentenced Crisanto de Borja to pay to the oppositors, the heirs of Quintin de Borja, the sum of
P83,337.31, which was 1/4 of the amount which the state lost, with legal interest from the date of
the judgment. On the same day, the Court also issued an order requiring the administrator to
deliver to the Clerk of that Court PNB Certificate of Deposit No. 211649 for P978.50 which was
issued in the name of Quintin de Borja.
The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower Court's orders of
August 15, 1952, the decision of September 5, 1952, and the order of even date, but when the
Record on Appeal was finally approved, the Court ordered the exclusion of the appeal from the
order of September 5, 1952, requiring the administrator to deposit the PNB Certificate of Deposit
No. 2114649 with the Clerk of Court, after the oppositors had shown that during the hearing of
that incident, the parties agreed to abide by whatever resolution the Court would make on the
ownership of the funds covered by that deposit.
The issues. Reducing the issues to bare essentials, the questions left for our determination are:
(1) whether the counsel for a party in a case may be included as a defendant in a counterclaim;
(2) whether a claim for moral damages may be entertained in a proceeding for the settlement of
an estate; (3) what may be considered as acts of maladministration and whether an administrator,
as the one in the case at bar, may be held accountable for any loss or damage that the estate under
his administration may incur by reason of his negligence, bad faith or acts of maladministration;
and (4) in the case at bar has the Intestate or any of the heirs suffered any loss or damage by
reason of the administrator's negligence, bad faith or maladministration? If so, what is the
amount of such loss or damage?
I. Section 1, Rule 10, of the Rules of Court defines a counterclaim as:
SECTION 1. Counterclaim Defined. A counterclaim is any claim, whether for money
or otherwise, which a party may have against the opposing party. A counterclaim need
not dismiss or defeat the recovery sought by the opposing party, but may claim relief
exceeding in amount or different in kind from that sought by the opposing party's claim.
It is an elementary rule of procedure that a counterclaim is a relief available to a party-defendant
against the adverse party which may or may not be independent from the main issue. There is no
controversy in the case at bar, that the acts, manifestations and actuations alleged to be
defamatory and upon which the counterclaim was based were done or prepared by counsel for
oppositors; and the administrator contends that as the very oppositors manifested that whatever
civil liability arising from acts, actuations, pleadings and manifestations attributable to their
lawyer is enforceable against said lawyer, the amended counterclaim was filed against the latter
not in his individual or personal capacity but as counsel for the oppositors. It is his stand,
therefore, that the lower erred in denying admission to said pleading. We differ from the view
taken by the administrator. The appearance of a lawyer as counsel for a party and his
participation in a case as such counsel does not make him a party to the action. The fact that he
represents the interests of his client or that he acts in their behalf will not hold him liable for or
make him entitled to any award that the Court may adjudicate to the parties, other than his
professional fees. The principle that a counterclaim cannot be filed against persons who are

acting in representation of another such as trustees in their individual capacities (Chambers

vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied with more force
and effect in the case of a counsel whose participation in the action is merely confined to the
preparation of the defense of his client. Appellant, however, asserted that he filed the
counterclaim against said lawyer not in his individual capacity but as counsel for the heirs of
Quintin de Borja. But as we have already stated that the existence of a lawyer-client relationship
does not make the former a party to the action, even this allegation of appellant will not alter the
result We have arrived at.
Granting that the lawyer really employed intemperate language in the course of the hearings or in
the preparation of the pleadings filed in connection with this case, the remedy against said
counsel would be to have him cited for contempt of court or take other administrative measures
that may be proper in the case, but certainly not a counterclaim for moral damages.
II. Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig branch) was
instituted for the purpose of settling the Intestate Estate of Marcelo de Borja. In taking
cognizance of the case, the Court was clothed with a limited jurisdiction which cannot expand to
collateral matters not arising out of or in any way related to the settlement and adjudication of
the properties of the deceased, for it is a settled rule that the jurisdiction of a probate court is
limited and special (Guzman vs. Anog, 37 Phil. 361). Although there is a tendency now to relax
this rule and extend the jurisdiction of the probate court in respect to matters incidental and
collateral to the exercise of its recognized powers (14 Am. Jur. 251-252), this should be
understood to comprehend only cases related to those powers specifically allowed by the
statutes. For it was even said that:
Probate proceedings are purely statutory and their functions limited to the control of the
property upon the death of its owner, and cannot extend to the adjudication of collateral
questions (Woesmes, The American Law of Administration, Vol. I, p. 514, 662-663).
It was in the acknowledgment of its limited jurisdiction that the lower court dismissed the
administrator's counterclaim for moral damages against the oppositors, particularly against
Marcela de Borja who allegedly uttered derogatory remarks intended to cast dishonor to said
administrator sometime in 1950 or 1951, his Honor's ground being that the court exercising
limited jurisdiction cannot entertain claims of this kind which should properly belong to a court
general jurisdiction. From what ever angle it may be looked at, a counterclaim for moral
damages demanded by an administrator against the heirs for alleged utterances, pleadings and
actuations made in the course of the proceeding, is an extraneous matter in a testate or intestate
proceedings. The injection into the action of incidental questions entirely foreign in probate
proceedings should not be encouraged for to do otherwise would run counter to the clear
intention of the law, for it was held that:
The speedy settlement of the estate of deceased persons for the benefit of the creditors
and those entitled to the residue by way of inheritance or legacy after the debts and
expenses of administration have been paid, is the ruling spirit of our probate law
(Magabanua vs. Akel, 72 Phil., 567, 40 Off Gaz., 1871).

III. and IV. This appeal arose from the opposition of the heirs of Quintin de Borja to the
approval of the statements of accounts rendered by the administrator of the Intestate Estate of
Marcelo de Borja, on the ground that certain fruits which should have been accrued to the estate
were unaccounted for, which charge the administrator denied. After a protracted and extensive
hearing on the matter, the Court, finding the administrator, Dr. Crisanto de Borja, guilty of
certain acts of maladministration, held him liable for the payment to the oppositors, the heirs of
Quintin de Borja, of 1/4 of the unreported income which the estate should have received. The
evidence presented in the court below bear out the following facts:
(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551 in Azcarraga
Street, Manila, situated in front of the Arranque market. Of this property, the administrator
reported to have received for the estate the following rentals:
Annual
Total
monthly
rentals
rental
P3,085.00 P51.42

Period of time
March to December,
1945
January to December,
1946
January to December,
1947
January to December,
1948
January to December,
1949
January to December,
1950
Total

4,980.00

69.17

8,330.00 115.70
9,000.00 125.00
8,840.00 122.77
6,060.00 184.16
P40,295.00

The oppositors, in disputing this record income, presented at the witness stand Lauro Aguila, a
lawyer who occupied the basement of Door No. 1541 and the whole of Door No. 1543 from
1945 to November 15, 1949, and who testified that he paid rentals on said apartments as follows:
1945
Door No. 1541 (basement)
February
March
April
May-December
Total

Door No. 1543

P20.00
20.00 For 7 months at
P300
60.00 a month
P2,100.00
800.00
P900.00

1946
JanuaryP1,200.00 JanuaryDecember
December
1947
January
P100.00 January
February
100.00 February
March
180.00 March 1-15
April-December 1,140.00 March 16December
P1,820.00
1948
JanuaryP1,920.00 JanuaryDecember
December
1949
JanuaryP1,680.00 JanuaryNovember 15
December

P4,080.00

P380.00
380.00
190.00
4,085.00
P5,035.00
P5,150.00

P4,315.00

From the testimony of said witness, it appears that from 1945 to November 15,1949, he paid a
total of P28,200 for the lease of Door No. 1543 and the basement of Door No. 1541. These
figures were not controverted or disputed by the administrator but claim that said tenant
subleased the apartments occupied by Pedro Enriquez and Soledad Sodora and paid the said
rentals, not to the administrator, but to said Enriquez. The transcript of the testimony of this
witness really bolster this contention that Lauro Aguila talked with said Pedro Enriquez when
he leased the aforementioned apartments and admitted paying the rentals to the latter and not to
the administrator. It is interesting to note that Pedro Enriquez is the same person who appeared to
be the administrator's collector, duly authorized to receive the rentals from this Azcarraga
property and for which services, said Enriquez received 5 per cent of the amount he might be
able to collect as commission. If we are to believe appellant's contention, aside from the
commission that Pedro Enriquez received he also sublet the apartments he was occupying at a
very much higher rate than that he actually paid the estate without the knowledge of the
administrator or with his approval. As the administrator also seemed to possess that peculiar
habit of giving little importance to bookkeeping methods, for he never kept a ledger or book of
entry for amounts received for the estate, We find no record of the rentals the lessees of the other
doors were paying. It was, however, brought about at the hearing that the 6 doors of this building
are of the same sizes and construction and the lower Court based its computation of the amount
this property should have earned for the estate on the rental paid by Atty. Aguila for the 1 1/2
doors that he occupied. We see no excuse why the administrator could not have taken cognizance
of these rates and received the same for the benefit of the estate he was administering,
considering the fact that he used to make trips to Manila usually once a month and for which he
charged to the estate P8 as transportation expenses for every trip.
Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received P112,800 from
February 1, 1945, to November 15, 1949, for the 6 doors, but the lower Court held him
accountable not only for the sum of P34,235 reported for the period ranging from March 1, 1945,

to December 31, 1949, but also for a deficit of P90,525 or a total of P124,760. The record shows,
however that the upper floor of Door No. 1549 was vacant in September, 1949, and as Atty.
Aguila used to pay P390 a month for the use of an entire apartment from September to
November, 1949, and he also paid P160 for the use of the basement of an apartment (Door No.
1541), the use, therefore, of said upper floor would cost P230 which should be deducted, even if
the computation of the lower Court would have to be followed.
There being no proper evidence to show that the administrator collected more rentals than those
reported by him, except in the instance already mentioned, We are reluctant to bold him
accountable in the amount for which he was held liable by the lower Court, and We think that
under the circumstances it would be more just to add to the sum reported by the administrator as
received by him as rents for 1945-1949 only, the difference between the sum reported as paid by
Atty. Aguila and the sum actually paid by the latter as rents of 1 1/2 of the apartments during the
said period, or P25,457.09 1/4 of which is P6,364.27 which shall be paid to the oppositors.
The record also shows that in July, 1950, the administrator delivered to the other heirs Doors
Nos. 1545, 1547, 1549 and 1551 although Doors Nos. 1541 and 1543 adjudicated to the
oppositors remained under his administration. For the period from January to June, 1950, that the
entire property was still administered by him, the administrator reported to have received for the
2 oppositors' apartments for said period of six months at P168.33 a month, the sum of P1,010
which belongs to the oppositors and should be taken from the amount reported by the
administrator.
The lower Court computed at P40 a month the pre-war rental admittedly received for every
apartment, the income that said property would have earned from 1941 to 1944, or a total of
P11,520, but as We have to exclude the period covered by the Japanese occupation, the estate
should receive only P2,880 1/4 of which P720 the administrator should pay to the oppositors for
the year 1941.
(b) The Intestate estate also owned a parcel of land in Mayapyap, Nueva Ecija, with an area of 71
hectares, 95 ares and 4 centares, acquired by Quintin de Borja the spouses Cornelio Sarangaya
and Feliciana Mariano in Civil Case NO. 6190 of the Court of First Instance of said province, In
virtue of the agreement entered into by the heirs, this property was turned over by the estate of
Quintin de Borja to the intestate and formed part of the general mass of said estate. The report of
the administrator failed to disclose any return from this property alleging that he had not taken
possession of the same. He does not deny however that he knew of the existence of this land but
claimed that when he demanded the delivery of the Certificate of Title covering this property,
Rogelio Limaco, then administrator of the estate of Quintin de Borja, refused to surrender the
same and he did not take any further action to recover the same.
To counteract the insinuation that the Estate of Quintin de Borja was in possession of this
property from 1940 to 1950, the oppositors presented several witnesses, among them was an old
man, Narciso Punzal, who testified that he knew both Quintin and Francisco de Borja; that
before the war or sometime in 1937, the former administrator of the Intestate, Quintin de Borja,
offered him the position of overseer (encargado) of this land but he was notable to assume the
same due to the death of said administrator; that on July 7, 1951, herein appellant invited him to

go to his house in Pateros, Rizal, and while in said house, he was instructed by appellant to
testify in court next day that he was the overseer of the Mayapyap property for Quintin de Borja
from 1937-1944, delivering the yearly proceeds of 1,000 cavanes of Palay to Rogelio Limaco;
that he did not need to be afraid because both Quintin de Borja and Rogelio Limaco were already
dead. But as he knew that the facts on which he was to testify were false, he went instead to the
house of one of the daughters of Quintin de Borja, who, together with her brother, Atty. Juan de
Borja, accompanied him to the house of the counsel for said oppositors before whom his sworn
declaration was taken (Exh. 3).
Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz and Ernesto Mangulabnan,
testified that they were some of the tenants of the Mayapyap property; that they were paying
their shares to the overseers of Francisco de Borja and sometimes to his wife, which the
administrator was not able to contradict, and the lower Court found no reason why the
administrator would fail to take possession of this property considering that this was even the
subject of the agreement of February 16, 1940, executed by the heirs of the Intestate.
The lower Court, giving due credence to the testimonies of the witnesses for the oppositors,
computed the loss the estate suffered in the form of unreported income from the rice lands for 10
years at P67,000 (6,700 a year)and the amount of P4,000 from the remaining portion of the land
not devoted to rice cultivation which was being leased at P20 per hectare. Consequently, the
Court held the administrator liable to appellees in the sum of P17,750 which is 1/4 of the total
amount which should have accrued to the estate for this item.
But if We exclude the 3 years of occupation, the income for 7 years would be P46,900 for the
ricelands and P2,800 (at P400 a year) for the remaining portion not developed to rice cultivation
or a total of P48,700, 1/4 of which is P12,175 which We hold the administrator liable to the
oppositors.
(c) The Hacienda Jalajala located in said town of Rizal, was divided into 3 parts: the Punta
section belonged to Marcelo de Borja, the Bagombong pertained to Bernardo de Borja and
Francisco de Borja got the Jalajala proper. For the purpose of this case, we will just deal with that
part called Junta. This property has an area of 1,345, hectares, 29 ares and 2 centares (Exh. 36) of
which, according to the surveyor who measured the same, 200 hectares were of cultivated rice
fields and 100 hectares dedicated to the planting of upland rice. It has also timberland and forest
which produce considerable amount of trees and firewoods. From the said property which has an
assessed value of P115,000 and for which the estates pay real estate tax of P1,500 annually, the
administrator reported the following:

Year
1945...........
1946.............
1947.............

Expenditure
(not including
administration'
Income
s fees
P625.00
P1,310.42
1,800.00
3,471.00
2,550.00
2,912.91

1948.............
1949.............
1950.............

1,828.00
3,204.50
2,082.00
P12,089.50

3,311.88
4,792.09
2,940.91
P18,739.21

This statement was assailed by the oppositors and to substantiate their charge that the
administrator did not file the true income of the property, they presented several witnesses who
testified that there were about 200 tenants working therein; that these tenants paid to Crisanto de
Borja rentals at the rate of 6 cavanes of palay per hectare; that in the years of 1943 and 1944, the
Japanese were the ones who collected their rentals, and that the estate could have received no
less than 1,000 cavanes of palay yearly. After the administrator had presented witnesses to refute
the facts previously testified to by the witnesses for the oppositors, the Court held that the report
of the administrator did not contain the real income of the property devoted to rice cultivation,
which was fixed at 1,000 cavanes every year for 1941, 1942, 1945, 1946, 1947, 1948, 1949
and 1950, or a total of 8,000 cavanes valued at P73,000. But as the administrator accounted for
the sum of P11,155 collected from rice harvests and if to this amount we add the sum of
P8,739.20 for expenses, this will make a total of P19,894.20, thus leaving a deficit of
P53,105.80, of which will be P13,276.45 which the administrator is held liable to pay the heirs
of Quintin de Borja.
It was also proved during the hearing that the forest land of this property yields considerable
amount of marketable firewoods. Taking into consideration the testimonies of witnesses for both
parties, the Court arrived at the conclusion that the administrator sold to Gregorio Santos
firewoods worth P600 in 1941, P3,500 in 1945 and P4,200 in 1946 or a total of P8,300. As the
report included only the amount of P625, there was a balance of P7,675 in favor of the estate.
The oppositors were not able to present any proof of sales made after these years, if there were
any and the administrator was held accountable to the oppositors for only P1,918.75.
(d) The estate also, owned ricefields in Cainta, Rizal, with a total area of 22 hectares, 76 ares and
66 centares. Of this particular item, the administrator reported an income of P12,104 from 1945
to 1951. The oppositors protested against this report and presented witnesses to disprove the
same.
Basilio Javier worked as a tenant in the land of Juliana de Borja which is near the land belonging
to the Intestate, the 2 properties being separated only by a river. As tenant of Juliana de Borja, he
knew the tenants working on the property and also knows that both lands are of the same class,
and that an area accommodating one cavan of seedlings yields at most 100 cavanes and 60
cavanes at the least. The administrator failed to overcome this testimony. The lower Court
considering the facts testified to by this witness made a finding that the property belonging to
this Intestate was actually occupied by several persons accommodating 13 cavanes of
seedlings; that as for every cavan of seedlings, the land produces 60 cavanes of palay, the whole
area under cultivation would have yielded 810 cavanes a year and under the 50-50 sharing
system (which was testified by witness Javier), the estate would have received no less than 405
cavanes every year. Now, for the period of 7 years from 1941 to 1950, excluding the 3 years
of war the corresponding earning of the estate should be 2,835 cavanes, out of which the 405
cavanes from the harvest of 1941 is valued at P1,215 and the rest 2,430 cavanes at P10 is valued

at P24,300, or all in all P25,515. If from this amount the reported income of P12,104 is deducted,
there will be a balance of P13,411.10 1/4 of which or P3,352.75 the administrator is held liable
to pay to the oppositors.
(e) The records show that the administrator paid surcharges and penalties with a total of P988.75
for his failure to pay on time the taxes imposed on the properties under his administration. He
advanced the reason that he lagged in the payment of those tax obligations because of lack of
cash balance for the estate. The oppositors, however, presented evidence that on October 29,
1939, the administrator received from Juliana de Borja the sum of P20,475.17 together with
certain papers pertaining to the intestate (Exh. 4),aside from the checks in the name of Quintin de
Borja. Likewise, for his failure to pay the taxes on the building at Azcarraga for 1947, 1948 and
1949, said property was sold at public auction and the administrator had to redeem the same at
P3,295.48, although the amount that should have been paid was only P2,917.26. The estate
therefore suffered a loss of P378.22. Attributing these surcharges and penalties to the negligence
of the administrator, the lower Court adjudged him liable to pay the oppositors of P1,366.97,
the total loss suffered by the Intestate, or P341.74.
(f) Sometime in 1942, a big fire razed numerous houses in Pateros, Rizal, including that of Dr.
Crisanto de Borja. Thereafter, he claimed that among the properties burned therein was his safe
containing P15,000 belonging to the estate under his administration. The administrator contended
that this loss was already proved to the satisfaction of the Court who, approved the same by order
of January 8, 1943, purportedly issued by Judge Servillano Platon(Exh. B). The oppositors
contested the genuineness of this order and presented on April 21, 1950, an expert witness who
conducted several tests to determine the probable age of the questioned document, and arrived at
the conclusion that the questioned ink writing "(Fdo)" appearing at the bottom of Exhibit B
cannot be more than 4 years old (Exh. 39). However, another expert witness presented by the
administrator contradicted this finding and testified that this conclusion arrived at by expert
witness Mr. Pedro Manzaares was not supported by authorities and was merely the result of his
own theory, as there was no method yet discovered that would determine the age of a document,
for every document has its own reaction to different chemicals used in the tests. There is,
however, another fact that called the attention of the lower Court: the administrator testified that
the money and other papers delivered by Juliana de Borja to him on October 29, 1939, were
saved from said fire. The administrator justified the existence of these valuables by asserting that
these properties were locked by Juliana de Borja in her drawer in the "casa solariega" in Pateros
and hence was not in his safe when his house, together with the safe, was burned. This line of
reasoning is really subject to doubt and the lower Court opined, that it runs counter to the
ordinary course of human behaviour for an administrator to leave in the drawer of the "aparador"
of Juliana de Borja the money and other documents belonging to the estate under his
administration, which delivery has receipted for, rather than to keep it in his safe together with
the alleged P15,000 also belonging to the Intestate. The subsequent orders of Judge Platon also
put the defense of appellant to bad light, for on February 6, 1943, the Court required Crisanto de
Borja to appear before the Court of examination of the other heirs in connection with the
reported loss, and on March 1, 1943, authorized the lawyers for the other parties to inspect the
safe allegedly burned (Exh. 35). It is inconceivable that Judge Platon would still order the
inspection of the safe if there was really an order approving the loss of those P15,000. We must
not forget, in this connection, that the records of this case were burned and that at the time of the

hearing of this incident in 1951, Judge Platon was already dead. The lower Court also found no
reason why the administrator should keep in his such amount of money, for ordinary prudence
would dictate that as an administration funds that come into his possession in a fiduciary
capacity should not be mingled with his personal funds and should have been deposited in the
Bank in the name of the intestate. The administrator was held responsible for this loss and
ordered to pay thereof, or the sum of P3,750.
(g) Unauthorized expenditures
1. The report of the administrator contained certain sums amounting to P2,130 paid to and
receipted by Juanita V. Jarencio the administrator's wife, as his private secretary. In explaining
this item, the administrator alleged that he needed her services to keep receipts and records for
him, and that he did not secure first the authorization from the court before making these
disbursements because it was merely a pure administrative function.
The keeping of receipts and retaining in his custody records connected with the management of
the properties under administration is a duty that properly belongs to the administrator, necessary
to support the statement of accounts that he is obliged to submit to the court for approval. If ever
his wife took charge of the safekeeping of these receipts and for which she should be
compensated, the same should be taken from his fee. This disbursement was disallowed by the
Court for being unauthorized and the administrator required to pay the oppositors , thereof or
P532.50.
2. The salaries of Pedro Enriquez, as collector of the Azcarraga property; of Briccio Matienzo
and Leoncio Perez, as encargados, and of Vicente Panganiban and Herminigildo Macetas as
forest-guards were found justified, although un authorized, as they appear to be reasonable and
necessary for the care and preservation of the Intestate.
3. The lower Court disallowed as unjustified and unnecessary the expenses for salaries paid to
special policemen amounting to P1,509. Appellant contended that he sought for the services of
Macario Kamungol and others to act as special policemen during harvest time because most of
the workers tilting the Punta property were not natives of Jalajala but of the neighboring towns
and they were likely to run away with the harvest without giving the share of the estate if they
were not policed. This kind of reasoning did not appear to be convincing to the trial judge as the
cause for such fear seemed to exist only in the imagination. Granting that such kind of situation
existed, the proper thing for the administrator to do would have been to secure the previous
authorization from the Court if he failed to secure the help of the local police. He should be held
liable for this unauthorized expenditure and pay the heirs of Quintin de Borja thereof or
P377.25.
4. From the year 1942 when his house was burned, the administrator and his family took shelter
at the house belonging to the Intestate known as "casa solariega" which, in the Project of
Partition was adjudicated to his father, Francisco de Borja. This property, however, remained
under his administration and for its repairs he spent from 1945-1950, P1465,14, duly receipted.

None of these repairs appear to be extraordinary for the receipts were for nipa, for carpenters and
thatchers. Although it is true that Rule 85, section 2 provides that:
SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR. An
executor or administrator shall maintain in tenant able repair the houses and other
structures and fences belonging to the estate, and deliver the same in such repair to the
heirs or devisees when directed so to do by the court.
yet considering that during his occupancy of the said "casa solariega" he was not paying any
rental at all, it is but reasonable that he should take care of the expenses for the ordinary repair of
said house. Appellant asserted that had he and his family not occupied the same, they would have
to pay someone to watch and take care of said house. But this will not excuse him from this
responsibility for the disbursements he made in connection with the aforementioned repairs
because even if he stayed in another house, he would have had to pay rentals or else take charge
also of expenses for the repairs of his residence. The administrator should be held liable to the
oppositors in the amount of P366.28.
5. Appellant reported to have incurred expenses amounting to P6,304.75 for alleged repairs on
the rice mill in Pateros, also belonging to the Intestate. Of the disbursements made therein, the
items corresponding, to Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total sum of
P570.70 were rejected by the lower court on the ground that they were all unsigned although
some were dated. The lower Court, however, made an oversight in including the sum of P150
covered by Exhibit L-26 which was duly signed by Claudio Reyes because this does not refer to
the repair of the rice-mill but for the roofing of the house and another building and shall be
allowed. Consequently, the sum of P570.70 shall be reduced to P420.70 which added to the sum
of P3,059 representing expenditures rejected as unauthorized to wit:
Exhibit L59 .............
Exhibit L60 .............
Exhibit L61 .............
Exhibit L62 .............
Exhibit L63 .............
Exhibit Q2 .............

P500.00

Yek Wing

616.00

Yek Wing

600.00

Yek Wing

840.00

Yek Wing

180.00

Yek Wing
scale
323.00 "Howe"

Total .................... P3,059.0

..
0
will give a total of P3,479 1/4 of which is P869.92 that belongs to the oppositors.

6. On the expenses for planting in the Cainta ricefields: In his statement of accounts, appellant
reported to have incurred a total expense of P5,977 for the planting of the ricefields in Cainta,
Rizal, from the agricultural year 1945-46 to 1950-51. It was proved that the prevailing sharing
system in this part of the country was on 50-50 basis. Appellant admitted that expenses for
planting were advanced by the estate and liquidated after each harvest. But the report, except for
the agricultural year 1950 contained nothing of the payments that the tenants should have made.
If the total expenses for said planting amounted to P5,977, thereof or P2,988.50 should have
been paid by the tenants as their share of such expenditures, and as P965 was reported by the
administrator as paid back in 1950, there still remains a balance of P2,023.50 unaccounted for.
For this shortage, the administrator is responsible and should pay the oppositors thereof or
P505.87.
7. On the transportation expenses of the administrator: It appears that from the year 1945 to
1951, the administrator charged the estate with a total of P5,170 for transportation expenses. The
un receipted disbursements were correspondingly itemized, a typical example of which is as
follows:
1950
Gastos de viaje del administrador From
Pateros
To
50 x
Pasig ................
P4.00 = P200.00
To
50 x
Manila ...............
P10.00 = P500.00
To
Cainta ................ 8 x P8.00 = P64.00
To
5x
Jalajala ...............
P35.00 = P175.00
= P399.00
(Exhibit W-54).
From the report of the administrator, We are being made to believe that the Intestate estate is a
losing proposition and assuming arguendo that this is true, that precarious financial condition
which he, as administrator, should know, did not deter Crisanto de Borja from charging to the
depleted funds of the estate comparatively big amounts for his transportation expenses. Appellant
tried to justify these charges by contending that he used his own car in making those trips to
Manila, Pasig and Cainta and a launch in visiting the properties in Jalajala, and they were for the
gasoline consumed. This rather unreasonable spending of the estate's fund prompted the Court to
observe that one will have to spend only P0.40 for transportation in making a trip from Pateros to
Manila and practically the same amount in going to Pasig. From his report for 1949 alone,
appellant made a total of 97 trips to these places or an average of one trip for every 3 1/2 days.
Yet We must not forget that it was during this period that the administrator failed or refused to
take cognizance of the prevailing rentals of commercial places in Manila that caused certain loss
to the estate and for which he was accordingly held responsible. For the reason that the alleged

disbursements made for transportation expenses cannot be said to be economical, the lower
Court held that the administrator should be held liable to the oppositors for thereof or the sum
of P1,292.50, though We think that this sum should still be reduced to P500.
8. Other expenses:
The administrator also ordered 40 booklets of printed contracts of lease in the name of the
Hacienda Jalajala which cost P150. As the said hacienda was divided into 3 parts one belonging
to this Intestate and the other two parts to Francisco de Boria and Bernardo de Borja, ordinarily
the Intestate should only shoulder /3 of the said expense, but as the tenants who testified

during the hearing of the matter testified that those printed forms were not being used,
the Court adjudged the administrator personally responsible for this amount. The
records reveal, that this printed form was not utilized because the tenants refused to
sign any, and We can presume that when the administrator ordered for the printing of
the same, he did not foresee this situation. As there is no showing that said printed
contracts were used by another and that they are still in the possession of the
administrator which could be utilized anytime, this disbursement may be allowed.
The report also contains a receipt of payment made to Mr. Severo Abellera in the sum
of P375 for his transportation expenses as one of the two commissioners who
prepared the Project of Partition. The oppositors were able to prove that on May 24,
1941, the Court authorized the administrator to withdraw from the funds of the
intestate the sum of P300 to defray the transportation expenses of the commissioners.
The administrator, however, alleged that he used this amount for the payment of
certain fees necessary in connection with the approval of the proposed plan of the
Azcarraga property which was then being processed in the City Engineer's Office.
From that testimony, it would seem that appellant could even go to the extent of
disobeying the order of the Court specifying for what purpose that amount should be
appropriated and took upon himself the task of judging for what it will serve best.
Since he was not able to show or prove that the money intended and ordered by the
Court to be paid for the transportation expenses of the commissioners was spent for
the benefit of the estate as claimed, the administrator should be held responsible
therefor and pay to the oppositors of P375 or the sum of P93.75.
The records reveal that for the service of summons to the defendants in Civil Case No.
84 of the Court of First Instance of Rizal, P104 was paid to the Provincial Sheriff of
the same province (Exhibit H-7). However, an item for P40 appeared to have been
paid to the Chief of Police on Jalajala allegedly for the service of the same summons.
Appellant claimed that as the defendants in said civil case lived in remote barrios, the
services of the Chief of Police as delegate or agent of the Provincial Sheriff were
necessary. He forgot probably the fact that the local chiefs of police are deputy

sheriffs ex-officio. The administrator was therefore ordered by the lower Court to pay
of said amount or P10 to the oppositors.
The administrator included in his Report the sum of P550 paid to Atty. Filamor for his
professional services rendered for the defense of the administrator in G.R. No. L4179, which was decided against him, with costs. The lower Court disallowed this
disbursement on the ground that this Court provided that the costs of that litigation
should not be borne by the estate but by the administrator himself, personally.
Costs of a litigation in the Supreme Court taxed by the Clerk of Court, after a verified
petition has been filed by the prevailing party, shall be awarded to said party and will
only include his fee and that of his attorney for their appearance which shall not be
more than P40; expenses for the printing and the copies of the record on appeal; all
lawful charges imposed by the Clerk of Court; fees for the taking of depositions and
other expenses connected with the appearance of witnesses or for lawful fees of a
commissioner (De la Cruz, Philippine Supreme Court Practice, p. 70-71). If the costs
provided for in that case, which this Court ordered to be chargeable personally against
the administrator are not recoverable by the latter, with more reason this item could
not be charged against the Intestate. Consequently, the administrator should pay the
oppositors of the sum of P550 or P137.50.
(e) The lower Court in its decision required appellant to pay the oppositors the sum of
P1,395 out of the funds still in the possession of the administrator.
In the statement of accounts submitted by the administrator, there appeared a cash
balance of P5,851.17 as of August 31, 1961. From this amount, the sum of P1,002.96
representing the Certificate of Deposit No. 21619 and Check No. 57338, both of the
Philippine National Bank and in the name of Quintin de Borja, was deducted leaving a
balance of P4,848. As Judge Zulueta ordered the delivery to the oppositors of the
amount of P1,890 in his order of October 8, 1951; the delivery of the amount of P810
to the estate of Juliana de Borja in his order of October 23, 1951, and the sum of
P932.32 to the same estate of Juliana de Borja by order of the Court of February 29,
1952, or a total of P3,632.32 after deducting the same from the cash in the possession
of the administrator, there will only be a remainder of P134.98.
The Intestate is also the creditor of Miguel B. Dayco, heir and administrator of the
estate of Crisanta de Borja, in the sum of P900 (Exhibits S and S-1). Adding this
credit to the actual cash on hand, there will be a total of P1,034.98, , of which or
P258.74 properly belongs to the oppositors. However, as there is only a residue of
P134.98 in the hands of the administrator and dividing it among the 3 groups of heirs
who are not indebted to the Intestate, each group will receive P44.99, and Miguel B.
Dayco is under obligation to reimburse P213.76 to each of them.

The lower Court ordered the administrator to deliver to the oppositors the amount of
P1,395.90 and P314.99 each to Francisco de Borja and the estate of Juliana de Borja,
but as We have arrived at the computation that the three heirs not idebted to the
Intestate ought to receive P44.99 each out of the amount of P134.98, the oppositors
are entitled to the sum of P1,080.91 the amount deducted from them as taxes but
which the Court ordered to be returned to them plus P44.99 or a total of P1,125.90.
It appearing however, that ina Joint Motion dated November 27, 1952, duly approved
by the Court, the parties agreed to fix the amount at P1,125.58, as the amount due and
said heirs have already received this amount in satisfaction of this item, no other sum
can be chargeable against the administrator.
(f) The probate Court also ordered the administrator to render an accounting of his
administration during the Japanese occupation on the ground that although appellant
maintained that whatever money he received during that period is worthless, same
having been declared without any value, yet during the early years of the war, or
during 1942-43, the Philippine peso was still in circulation, and articles of prime
necessity as rice and firewood commanded high prices and were paid with jewels or
other valuables.
But We must not forget that in his order of December 11, 1945, Judge Pea required
the administrator to render an accounting of his administration only from March 1,
1945, to December of the same year without ordering said administrator to include
therein the occupation period. Although the Court below mentioned the condition then
prevailing during the war-years, We cannot simply presume, in the absence of proof to
that effect, that the administrator received such valuables or properties for the use or
in exchange of any asset or produce of the Intestate, and in view of the
aforementioned order of Judge Pea, which We find no reason to disturb, We see no
practical reason for requiring appellant to account for those occupation years when
everything was affected by the abnormal conditions created by the war. The records of
the Philippine National Bank show that there was a current account jointly in the
names of Crisanto de Borja and Juanita V. Jarencio, his wife, with a balance of
P36,750.35 in Japanese military notes and admittedly belonging to the Intestate and
We do not believe that the oppositors or any of the heirs would be interested in an
accounting for the purpose of dividing or distributing this deposit.
(g) On the sum of P13,294 for administrator's fees:
It is not disputed that the administrator set aside for himself and collected from the
estate the sum of P13,294 as his fees from 1945 to 1951 at the rate of P2,400 a year.
There is no controversy as to the fact that this appropriated amount was taken without
the order or previous approval by the probate Court. Neither is there any doubt that
the administration of the Intestate estate by Crisanto de Borja is far from satisfactory.

Yet it is a fact that Crisanto de Borja exercised the functions of an administrator and is
entitled also to a certain amount as compensation for the work and services he has
rendered as such. Now, considering the extent and size of the estate, the amount
involved and the nature of the properties under administration, the amount collected
by the administrator for his compensation at P200 a month is not unreasonable and
should therefore be allowed.
It might be argued against this disbursement that the records are replete with instances
of highly irregular practices of the administrator, such as the pretended ignorance of
the necessity of a book or ledger or at least a list of chronological and dated entries of
money or produce the Intestate acquired and the amount of disbursements made for
the same properties; that admittedly he did not have even a list of the names of the
lessees to the properties under his administration, nor even a list of those who owed
back rentals, and although We certainly agree with the probate Court in finding
appellant guilty of acts of maladministration, specifically in mixing the funds of the
estate under his administration with his personal funds instead of keeping a current
account for the Intestate in his capacity as administrator, We are of the opinion that
despite these irregular practices for which he was held already liable and made in
some instances to reimburse the Intestate for amounts that were not properly
accounted for, his claim for compensation as administrator's fees shall be as they are
hereby allowed.
Recapitulation. Taking all the matters threshed herein together, the administrator is
held liable to pay to the heirs of Quintin de Borja the following:
Under Paragraphs III and IV:
(a) ..........................................................................
.....
(b) ..........................................................................
.....
(c) ..........................................................................
.....
(d) ..........................................................................
.....
(e) ..........................................................................
.....
(f) ...........................................................................
.....
(g) 1 .....................................................................
2 .....................................................................
3 .....................................................................

P7,084.27
12,175.00
16,113.95
3,352.75
341.74
3,750.00
532.50
377.25
366.28

4 .....................................................................
5 .....................................................................
6 .....................................................................
7-a
b ..................................................................
c ..................................................................

869.92
505.87
500.00
93.75
10.00
137.50

d ...................................................................
P46,210.00

In view of the foregoing, the decision appealed from is modified by reducing the
amount that the administrator was sentenced to pay the oppositors to the sum of
P46,210.78 (instead of P83,337.31), plus legal interests on this amount from the date
of the decision appealed from, which is hereby affirmed in all other respects. Without
pronouncement as to costs. It is so ordered.

G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO
BONILLA (their father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL
BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO
GIRONELLA of the Court of First Instance of Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.

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

Hence, this petition for review.

The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case
No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While it is true
that a person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case
up to its completion. The records of this case show that the death of Fortunata Barcena took place on July
9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint was filed
on March 31, 1975, Fortunata Barcena was still alive, and therefore, the court had acquired jurisdiction
over her person. If thereafter she died, the Rules of Court prescribes the procedure whereby a party who
died during the pendency of the proceeding can be substituted. Under Section 16, Rule 3 of the Rules of
Court "whenever a party to a pending case dies ... it shall be the duty of his attorney to inform the court
promptly of such death ... and to give the name and residence of his executor, administrator, guardian or
other legal representatives." This duty was complied with by the counsel for the deceased plaintiff when
he manifested before the respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the
proper substitution of parties in the case. The respondent Court, however, instead of allowing the
substitution, dismissed the complaint on the ground that a dead person has no legal personality to sue.
This is a grave error. Article 777 of the Civil Code provides "that the rights to the succession are
transmitted from the moment of the death of the decedent." From the moment of the death of the
decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of
the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by
law. 3 The moment of death is the determining factor when the heirs acquire a definite right to the
inheritance whether such right be pure or contingent. 4 The right of the heirs to the property of the
deceased vests in them even before judicial declaration of their being heirs in the testate or intestate
proceedings. 5 When Fortunata Barcena, therefore, died her claim or right to the parcels of land in
litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon
her death. Her heirs have thus acquired interest in the properties in litigation and became parties in
interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution
as parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear
and be substituted for the deceased, within such time as may be granted ... ." The question as to whether
an action survives or not depends on the nature of the action and the damage sued for. 6 In the causes of
action which survive the wrong complained affects primarily and principally property and property rights,
the injuries to the person being merely incidental, while in the causes of action which do not survive the
injury complained of is to the person, the property and rights of property affected being incidental. 7
Following the foregoing criterion the claim of the deceased plaintiff which is an action to quiet title over the
parcels of land in litigation affects primarily and principally property and property rights and therefore is
one that survives even after her death. It is, therefore, the duty of the respondent Court to order the legal
representative of the deceased plaintiff to appear and to be substituted for her. But what the respondent
Court did, upon being informed by the counsel for the deceased plaintiff that the latter was dead, was to
dismiss the complaint. This should not have been done for under the same Section 17, Rule 3 of the
Rules of Court, it is even the duty of the court, if the legal representative fails to appear, to order the
opposing party to procure the appointment of a legal representative of the deceased. In the instant case
the respondent Court did not have to bother ordering the opposing party to procure the appointment of a
legal representative of the deceased because her counsel has not only asked that the minor children be
substituted for her but also suggested that their uncle be appointed as guardian ad litem for them
because their father is busy in Manila earning a living for the family. But the respondent Court refused the
request for substitution on the ground that the children were still minors and cannot sue in court. This is
another grave error because the respondent Court ought to have known that under the same Section 17,
Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs.
Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the respondent Court
that the uncle of the minors be appointed to act as guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in not complying with the clear provision of the Rules

of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of
parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil Case
No. 856 of the Court of First Instance of Abra and the motions for reconsideration of the order of dismissal
of said complaint are set aside and the respondent Court is hereby directed to allow the substitution of the
minor children, who are the petitioners therein for the deceased plaintiff and to appoint a qualified person
as guardian ad litem for them. Without pronouncement as to costs.
SO ORDERED.

G.R. No. L-41171

July 23, 1987

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO

BORROMEO-HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the Court of
First Instance of Cebu, Branch II, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-55000

July 23, 1987

IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR N.

BORROMEO, MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE BORROMEO,
CONSUELO B. MORALES, AND CANUTO V. BORROMEO, JR., heirs-appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-62895

July 23, 1987

JOSE CUENCO BORROMEO, petitioner,

vs.
HONORABLE COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As presiding
Judge of the (now) Regional Trial Court, Branch XV, Region VII, RICARDO V. REYES, as
Administrator of the Estate of Vito Borromeo in Sp. Proc. No. 916-R, NUMERIANO G.
ESTENZO and DOMINGO L. ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-63818

July 23, 1987

DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the Intestate

Estate of VITO BORROMEO, Sp. Proceedings No. 916-R, Regional Trial Court of Cebu,
joined by HON. JUDGE FRANCISCO P. BURGOS, as Presiding Judge of Branch XV of
the Regional Trial Court of Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA,
GAUDIOSO RUIZ and NUMERIANO ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO BORROMEO,
and PETRA O. BORROMEO, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-65995

July 23, 1987

PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and

JOSE CUENCO BORROMEO, petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV, Regional Trial
Court of Cebu; RICARDO V. REYES, Administrator of the Estate of VITO BORROMEO
in Sp. Proc. No. 916-R; and DOMINGO L. ANTIGUA, respondents.
GUTIERREZ, JR., J.:
These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First Instance of
Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in
Paranaque, Rizal at the age of 88 years, without forced heirs but leaving extensive properties in
the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the
probate of a one page document as the last will and testament left by the said deceased, devising
all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and
undivided shares, and designating Junquera as executor thereof. The case was docketed as
Special Proceedings No. 916-R. The document, drafted in Spanish, was allegedly signed and
thumbmarked by the deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and
Felixberto Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate
court held that the document presented as the will of the deceased was a forgery.
On appeal to this Court, the decision of the probate court disallowing the probate of the will was
affirmed in Testate Estate of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et al.
(19 SCRA 656).
The testate proceedings was converted into an intestate proceedings. Several parties came before
the court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a
petition for declaration of heirs and determination of heirship. There was no opposition
filed against said petition.

2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as heir.
The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to this petition.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon
Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora Morre,
Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition for declaration of heirs
and determination of shares. The petition was opposed by the heirs of Jose and Cosme
Borromeo.
4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda
Borromeo Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim. Jose
Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of Carlos
Borromeo represented by Jose Talam filed oppositions to this claim.
When the aforementioned petitions and claims were heard jointly, the following facts were
established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having predeceased
the former), were survived by their eight (8) children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his brothers and
sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the following children:
a. Ismaela Borromeo,who died on Oct. 16, 1939
b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito
Borromeo. He was married to Remedios Cuenco Borromeo, who died on March 28,
1968. He had an only son-Atty. Jose Cuenco Borromeo one of the petitioners herein.

c. Crispin Borromeo, who is still alive.

4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left an only daughter,
Aurora B. Ocampo, who died on Jan. 30, 1950 leaving the following children:
a. Anecita Ocampo Castro
b. Ramon Ocampo
c. Lourdes Ocampo
d. Elena Ocampo, all living, and
e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.
5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left the
following children:
a. Marcial Borromeo
b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife, Remedios Alfonso,
and his only daughter, Amelinda Borromeo Talam
c. Asuncion Borromeo
d. Florentina Borromeo, who died in 1948.
e. Amilio Borromeo, who died in 1944.
f. Carmen Borromeo, who died in 1925.
The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and left the
following children:
a. Exequiel Borromeo,who died on December 29, 1949
b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:
aa. Federico Borromeo
bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)
cc. Canuto Borromeo, Jr.

dd. Jose Borromeo

ee. Consuelo Borromeo
ff. Pilar Borromeo
gg. Salud Borromeo
hh. Patrocinio Borromeo Herrera
c. Maximo Borromeo, who died in July, 1948
d. Matilde Borromeo, who died on Aug. 6, 1946
e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:
aa. Maria Borromeo Atega
bb. Luz Borromeo
cc. Hermenegilda Borromeo Nonnenkamp
dd. Rosario Borromeo
ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring
the following, to the exclusion of all others, as the intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera
5. Salud Borromeo
6. Asuncion Borromeo
7. Marcial Borromeo
8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo

The court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided
into 4/9 and 5/9 groups and distributed in equal and equitable shares among the 9 abovenamed
declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed
an agreement of partition of the properties of the deceased Vito Borromeo which was approved
by the trial court, in its order of August 15, 1969. In this same order, the trial court ordered the
administrator, Atty Jesus Gaboya, Jr., to partition the properties of the deceased in the way and
manner they are divided and partitioned in the said Agreement of Partition and further ordered
that 40% of the market value of the 4/9 and 5/9 of the estate shall be segregated. All attorney's
fees shall be taken and paid from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as heir under the
forged will, filed a motion before the trial court praying that he be declared as one of the heirs of
the deceased Vito Borromeo, alleging that he is an illegitimate son of the deceased and that in the
declaration of heirs made by the trial court, he was omitted, in disregard of the law making him a
forced heir entitled to receive a legitime like all other forced heirs. As an acknowledged
illegitimate child, he stated that he was entitled to a legitime equal in every case to four-fifths of
the legitime of an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was already barred by the order of the court
dated April 12, 1969 declaring the persons named therein as the legal heirs of the deceased Vito
Borromeo, the court dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to
support his motion for reconsideration, Fortunato changed the basis for his claim to a portion of
the estate. He asserted and incorporated a Waiver of Hereditary Rights dated July 31, 1967,
supposedly signed by Pilar N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V. Borromeo,
Jr., Salud Borromeo, Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo,
Federico V. Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam In the
waiver, five of the nine heirs relinquished to Fortunato their shares in the disputed estate. The
motion was opposed on the ground that the trial court, acting as a probate court, had no
jurisdiction to take cognizance of the claim; that respondent Fortunato Borromeo is estopped
from asserting the waiver agreement; that the waiver agreement is void as it was executed before
the declaration of heirs; that the same is void having been executed before the distribution of the
estate and before the acceptance of the inheritance; and that it is void ab initio and inexistent for
lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding that the five declared heirs
who signed the waiver agreement assigning their hereditary rights to Fortunato Borromeo had
lost the same rights, declared the latter as entitled to 5/9 of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.

In the present petition, the petitioner seeks to annul and set aside the trial court's order dated
December 24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of the estate of
Vito Borromeo and the July 7, 1975 order, denying the motion for reconsideration.
The petitioner argues that the trial court had no jurisdiction to take cognizance of the claim of
respondent Fortunato Borromeo because it is not a money claim against the decedent but a claim
for properties, real and personal, which constitute all of the shares of the heirs in the decedent's
estate, heirs who allegedly waived their rights in his favor. The claim of the private respondent
under the waiver agreement, according to the petitioner, may be likened to that of a creditor of
the heirs which is improper. He alleges that the claim of the private respondent under the waiver
agreement was filed beyond the time allowed for filing of claims as it was filed only sometime in
1973, after there had been a declaration of heirs (April 10, 1969), an agreement of partition
(April 30, 1969), the approval of the agreement of partition and an order directing the
administrator to partition the estate (August 15, 1969), when in a mere memorandum, the
existence of the waiver agreement was brought out.
It is further argued by the petitioner that the document entitled " waiver of Hereditary Rights"
executed on July 31, 1967, aside from having been cancelled and revoked on June 29, 1968, by
Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo, is without force and effect
because there can be no effective waiver of hereditary rights before there has been a valid
acceptance of the inheritance the heirs intend to transfer. Pursuant to Article 1043 of the Civil
Code, to make acceptance or repudiation of inheritance valid, the person must be certain of the
death of the one from whom he is to inherit and of his right to the inheritance. Since the
petitioner and her co-heirs were not certain of their right to the inheritance until they were
declared heirs, their rights were, therefore, uncertain. This view, according to the petitioner, is
also supported by Article 1057 of the same Code which directs heirs, devicees, and legatees to
signify their acceptance or repudiation within thirty days after the court has issued an order for
the distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the Civil
Code there is no need for a person to be first declared as heir before he can accept or repudiate an
inheritance. What is required is that he must first be certain of the death of the person from
whom he is to inherit and that he must be certain of his right to the inheritance. He points out that
at the time of the signing of the waiver document on July 31, 1967, the signatories to the waiver
document were certain that Vito Borromeo was already dead as well as of their rights to the
inheritance as shown in the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass upon the validity of the waiver
of hereditary rights, respondent Borromeo asserts that since the waiver or renunciation of
hereditary rights took place after the court assumed jurisdiction over the properties of the estate it
partakes of the nature of a partition of the properties of the estate needing approval of the court
because it was executed in the course of the proceedings. lie further maintains that the probate
court loses jurisdiction of the estate only after the payment of all the debts of the estate and the
remaining estate is distributed to those entitled to the same.

The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in an
existing inheritance cannot be considered as belonging to third persons with respect to the heirs,
who by fiction of law continue the personality of the former. Nor do such properties have the
character of future property, because the heirs acquire a right to succession from the moment of
the death of the deceased, by principle established in article 657 and applied by article 661 of the
Civil Code, according to which the heirs succeed the deceased by the mere fact of death. More or
less, time may elapse from the moment of the death of the deceased until the heirs enter into
possession of the hereditary property, but the acceptance in any event retroacts to the moment of
the death, in accordance with article 989 of the Civil Code. The right is vested, although
conditioned upon the adjudication of the corresponding hereditary portion." (Osorio v. Osorio
and Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their hereditary
rights in 1967 even if the order to partition the estate was issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be
effective. For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an intention to relinquish such right. (People v.
Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must
be shown clearly and convincingly, and when the only proof of intention rests in what a party
does, his act should be so manifestly consistent with, and indicative of an intent to, voluntarily
relinquish the particular right or advantage that no other reasonable explanation of his conduct is
possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the waiver document did not have the
clear and convincing intention to relinquish their rights, Thus: (1) On October 27, 1967.
Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled "Compliance" wherein they
submitted a proposal for the amicable settlement of the case. In that Compliance, they proposed
to concede to all the eight (8) intestate heirs of Vito Borromeo all properties, personal and real,
including all cash and sums of money in the hands of the Special Administrator, as of October
31, 1967, not contested or claimed by them in any action then pending in the Court of First
Instance of Cebu. In turn, the heirs would waive and concede to them all the 14 contested lots. In
this document, the respondent recognizes and concedes that the petitioner, like the other
signatories to the waiver document, is an heir of the deceased Vito Borromeo, entitled to share in
the estate. This shows that the "Waiver of Hereditary Rights" was never meant to be what the
respondent now purports it to be. Had the intent been otherwise, there would not be any reason
for Fortunato, Tomas, and Amelia Borromeo to mention the heirs in the offer to settle the case
amicably, and offer to concede to them parts of the estate of the deceased; (2) On April 21 and
30, 1969, the majority of the declared heirs executed an Agreement on how the estate they
inherited shall be distributed. This Agreement of Partition was approved by the trial court on
August 15, 1969; (3) On June 29, 1968, the petitioner, among others, signed a document entitled
Deed of Assignment" purporting to transfer and assign in favor of the respondent and Tomas and
Amelia Borromeo all her (Patrocinio B. Herrera's) rights, interests, and participation as an
intestate heir in the estate of the deceased Vito Borromeo. The stated consideration for said
assignment was P100,000.00; (4) On the same date, June 29, 1968, the respondent Tomas, and
Amelia Borromeo (assignees in the aforementioned deed of assignment) in turn executed a
"Deed of Reconveyance" in favor of the heirs-assignors named in the same deed of assignment.
The stated consideration was P50,000.00; (5) A Cancellation of Deed of Assignment and Deed of

Reconveyance was signed by Tomas Borromeo and Amelia Borromeo on October 15, 1968,
while Fortunato Borromeo signed this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction to pass upon
the validity of the waiver agreement. It must be noted that in Special Proceedings No. 916-R the
lower court disallowed the probate of the will and declared it as fake. Upon appeal, this Court
affirmed the decision of the lower court on March 30, 1967, in G.R. No. L-18498. Subsequently,
several parties came before the lower court filing claims or petitions alleging themselves as heirs
of the intestate estate of Vito Borromeo. We see no impediment to the trial court in exercising
jurisdiction and trying the said claims or petitions. Moreover, the jurisdiction of the trial court
extends to matters incidental and collateral to the exercise of its recognized powers in handling
the settlement of the estate.
In view of the foregoing, the questioned order of the trial court dated December 24, 1974, is
hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order of the Court of First
Instance of Cebu, Branch 11, dated December 24, 1974, declaring the waiver document earlier
discussed in G.R. No. 41171 valid. The appellate court certified this case to this Court as the
questions raised are all of law.
The appellants not only assail the validity of the waiver agreement but they also question the
jurisdiction of the lower court to hear and decide the action filed by claimant Fortunato
Borromeo.
The appellants argue that when the waiver of hereditary right was executed on July 31, 1967,
Pilar Borromeo and her children did not yet possess or own any hereditary right in the intestate
estate of the deceased Vito Borromeo because said hereditary right was only acquired and owned
by them on April 10, 1969, when the estate was ordered distributed.
They further argue that in contemplation of law, there is no such contract of waiver of hereditary
right in the present case because there was no object, which is hereditary right, that could be the
subject matter of said waiver, and, therefore, said waiver of hereditary right was not only null
and void ab initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that without any formal pleading
filed by the lawyers of Fortunato Borromeo for the approval of the waiver agreement and
without notice to the parties concerned, two things which are necessary so that the lower court
would be vested with authority and jurisdiction to hear and decide the validity of said waiver
agreement, nevertheless, the lower court set the hearing on September 25, 1973 and without
asking for the requisite pleading. This resulted in the issuance of the appealed order of December
24, 1974, which approved the validity of the waiver agreement. The appellants contend that this
constitutes an error in the exercise of jurisdiction.

The appellee on the other hand, maintains that by waiving their hereditary rights in favor of
Fortunato Borromeo, the signatories to the waiver document tacitly and irrevocably accepted the
inheritance and by virtue of the same act, they lost their rights because the rights from that
moment on became vested in Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil Code there is no need for a
person to be declared as heir first before he can accept or repudiate an inheritance. What is
required is that he is certain of the death of the person from whom he is to inherit, and of his
right to the inheritance. At the time of the signing of the waiver document on July 31, 1967, the
signatories to the waiver document were certain that Vito Borromeo was already dead and they
were also certain of their right to the inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not acquire jurisdiction over the claim
because of the alleged lack of a pleading invoking its jurisdiction to decide the claim, the
appellee asserts that on August 23, 1973, the lower court issued an order specifically calling on
all oppositors to the waiver document to submit their comments within ten days from notice and
setting the same for hearing on September 25, 1973. The appellee also avers that the claim as to a
5/9 share in the inheritance involves no question of title to property and, therefore, the probate
court can decide the question.
The issues in this case are similar to the issues raised in G.R. No. 41171. The appellants in this
case, who are all declared heirs of the late Vito Borromeo are contesting the validity of the trial
court's order dated December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the
estate of Vito Borromeo under the waiver agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be validated. The
essential elements of a waiver, especially the clear and convincing intention to relinquish
hereditary rights, are not found in this case.
The October 27, 1967 proposal for an amicable settlement conceding to all the eight (8) intestate
heirs various properties in consideration for the heirs giving to the respondent and to Tomas, and
Amelia Borromeo the fourteen (14) contested lots was filed inspite of the fact that on July 31,
1967, some of the heirs had allegedly already waived or sold their hereditary rights to the
respondent.
The agreement on how the estate is to be distributed, the June 29, 1968 deed of assignment, the
deed of reconveyance, and the subsequent cancellation of the deed of assignment and deed of
reconveyance all argue against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that the trial court
acquired jurisdiction to pass upon the validity of the waiver agreement because the trial court's
jurisdiction extends to matters incidental and collateral to the exercise of its recognized powers
in handling the settlement of the estate.
The questioned order is, therefore, SET ASIDE.

G.R. No. 62895

A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative of some of
the heirs-distributees, praying for the immediate closure of Special Proceeding No. 916-R. A
similar motion dated May 29, 1979 was filed by Atty. Jose Amadora. Both motions were
grounded on the fact that there was nothing more to be done after the payment of all the
obligations of the estate since the order of partition and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the aforesaid
motions, petitioner Jose Cuenco Borromeo-filed a petition for mandamus before the Court of
Appeals to compel the respondent judge to terminate and close Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to pending motions to compel the
petitioner, as co-administrator, to submit an inventory of the real properties of the estate and an
accounting of the cash in his hands, pending claims for attorney's fees, and that mandamus will
not lie to compel the performance of a discretionary function, the appellate court denied the
petition on May 14, 1982. The petitioner's motion for reconsideration was likewise denied for
lack of merit. Hence, this petition.
The petitioner's stand is that the inaction of the respondent judge on the motion filed on April 28,
1972 for the closure of the administration proceeding cannot be justified by the filing of the
motion for inventory and accounting because the latter motion was filed only on March 2, 1979.
He claimed that under the then Constitution, it is the duty of the respondent judge to decide or
resolve a case or matter within three months from the date of its submission.
The respondents contend that the motion to close the administration had already been resolved
when the respondent judge cancelled all settings of all incidents previously set in his court in an
order dated June 4, 1979, pursuant to the resolution and restraining order issued by the Court of
Appeals enjoining him to maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order dated August 15, 1969. In this same
order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to partition the properties
of the deceased in the way and manner they are divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall be
segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p. 197, Rollo, G.
R. No. 41171) his court has not finally distributed to the nine (9) declared heirs the properties
due to the following circumstances:
1. The court's determination of the market value of the estate in order to segregate the
40% reserved for attorney's fees;

2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of the
5/9 of the estate because of the waiver agreement signed by the heirs representing the 5/9
group which is still pending resolution by this Court (G.R. No. 4117 1);
3. The refusal of administrator Jose Cuenco Borromeo to render his accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of notices of lis
pendens on the different titles of the properties of the estate.
Since there are still real properties of the estate that were not vet distributed to some of the
declared heirs, particularly the 5/9 group of heirs due to the pending resolution of the waiver
agreement, this Court in its resolution of June 15, 1983, required the judge of the Court of First
Instance of Cebu, Branch 11, to expedite the determination of Special Proceedings No. 916-R
and ordered the co-administrator Jose Cuenco Borromeo to submit an inventory of real
properties of the estate and to render an accounting of cash and bank deposits realized from rents
of several properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated
December 24, 1974;
2. G.R. No. 63818, denying the petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the Intestate Estate of Vito Borromeo and ordering the
remand of the case to the Executive,Judge of the Regional trial Court of Cebu for reraffling; and
3. G.R. No. 65995, granting the petition to restrain the respondents from further acting on
any and all incidents in Special proceedings No. 916-11 because of the affirmation of the
decision of the Intermediate Appellate Court in G.R. No. 63818.
the trial court may now terminate and close Special Proceedings No. 916-R, subject to the
submission of an inventory of the real properties of the estate and an accounting of the call and
bank deposits of the petitioner, as co-administrator of the estate, if he has not vet done so, as
required by this Court in its Resolution dated June 15, 1983. This must be effected with all
deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a motion for
inhibition in the Court of First Instance of Cebu, Branch 11, presided over by Judge Francisco P.
Burgos to inhibit the judge from further acting in Special Proceedings No. 916-R. 'The movants
alleged, among others, the following:

xxx

xxx

xxx

6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the production of
the certificates of title and to deposit the same with the Branch Clerk of Court,
presumably for the ready inspection of interested buyers. Said motion was granted by the
Hon. Court in its order of October 2, 1978 which, however, became the subject of various
motions for reconsideration from heirs-distributees who contended that as owners they
cannot be deprived of their titles for the flimsy reasons advanced by Atty, Antigua. In
view of the motions for reconsideration, Atty Antigua ultimately withdraw his motions
for production of titles.
7. The incident concerning the production of titles triggered another incident involving
Atty. Raul H. Sesbreno who was then the counsel of herein movants Petra O. Borromeo
and Amelinda B. Talam In connection with said incident, Atty. Sesbreno filed a pleading
which the tion. presiding, Judge Considered direct contempt because among others, Atty.
Sesbreno insinuated that the Hon. Presiding Judge stands to receive "fat commission"
from the sale of the entire property. Indeed, Atty. Sesbreno was seriously in danger of
being declared in contempt of court with the dim prospect of suspension from the practice
of his profession. But obviously to extricate himself from the prospect of contempt and
suspension. Atty. Sesbreno chose rapproachment and ultimately joined forces with Atty.
Antigua, et al., who, together, continued to harass administrator
xxx

xxx

xxx

9. The herein movants are informed and so they allege, that a brother of the Hon.
Presiding Judge is married to a sister of Atty. Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are agitating for the
sale of the entire estate or to buy out the individual heirs, on the one hand, and the herein
movants, on the other, who are not willing to sell their distributive shares under the terms
and conditions presently proposed. In this tug of war, a pattern of harassment has become
apparent against the herein movants, especially Jose Cuenco Borromeo. Among the
harassments employed by Atty Antigua et al. are the pending motions for the removal of
administrator Jose Cuenco Borromeo, the subpoena duces tecum issued to the bank which
seeks to invade into the privacy of the personal account of Jose Cuenco Borromeo, and
the other matters mentioned in paragraph 8 hereof. More harassment motions are
expected until the herein movants shall finally yield to the proposed sale. In such a
situation, the herein movants beg for an entirely independent and impartial judge to pass
upon the merits of said incidents.
11. Should the Hon. Presiding Judge continue to sit and take cognizance of this
proceeding, including the incidents above-mentioned, he is liable to be misunderstood as
being biased in favor of Atty Antigua, et al. and prejudiced against the herein movants.
Incidents which may create this impression need not be enumerated herein. (pp. 39-41,
Rollo)

The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for
reconsideration having been denied, the private respondents filed a petition for certiorari and/or
prohibition with preliminary injunction before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged, among others, the following:
xxx

xxx

xxx

16. With all due respect, petitioners regret the necessity of having to state herein that
respondent Hon. Francisco P. Burgos has shown undue interest in pursing the sale
initiated by Atty. Domingo L. Antigua, et al. Significantly, a brother of respondent Hon.
Francisco P. Burgos is married to a sister of Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the entire properties of the estate cannot be legally
done without the conformity of the heirs-distributees because the certificates of title are
already registered in their names Hence, in pursuit of the agitation to sell, respondent
Hon. Francisco P. Burgos urged the heirs-distributees to sell the entire property based on
the rationale that proceeds thereof deposited in the bank will earn interest more than the
present income of the so called estate. Most of the heirs-distributees, however. have been
petitioner timid to say their piece. Only the 4/9 group of heirs led by Jose Cuenco
Borromeo have had the courage to stand up and refuse the proposal to sell clearly favored
by respondent Hon. Francisco P. Burgos.
xxx

xxx

xxx

20. Petitioners will refrain from discussing herein the merits of the shotgun motion of
Atty. Domingo L. Antigua as well as other incidents now pending in the court below
which smack of harassment against the herein petitioners. For, regardless of the merits of
said incidents, petitioners respectfully contend that it is highly improper for respondent
Hon. Francisco P. Burgos to continue to preside over Sp. Proc. No. 916-R by reason of
the following circumstances:
(a) He has shown undue interest in the sale of the properties as initiated by Atty.
Domingo L. Antigua whose sister is married to a brother of respondent.
(b) The proposed sale cannot be legally done without the conformity of the heirsdistributees, and petitioners have openly refused the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and similar incidents are clearly
intended to harass and embarrass administrator Jose Cuenco Borromeo in order to
pressure him into acceding to the proposed sale.
(d) Respondent has shown bias and prejudice against petitioners by failing to
resolve the claim for attorney's fees filed by Jose Cuenco Borromeo and the late

Crispin Borromeo. Similar claims by the other lawyers were resolved by

respondent after petitioners refused the proposed sale. (pp. 41-43, Rollo)
On March 1, 1983, the appellate court rendered its decision granting the petition for certiorari
and/or prohibition and disqualifying Judge Francisco P. Burgos from taking further cognizance
of Special Proceedings No. 916-R. The court also ordered the transmission of the records of the
case to the Executive Judge of the Regional Trial Court of Region VII for re-raffling.
A motion for reconsideration of the decision was denied by the appellate court on April 11, 1983.
Hence, the present petition for review seeking to modify the decision of the Intermediate
Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further
hearing the case of Intestate Estate of Vito Borromeo and orders the remand of the case to the
Executive Judge of the Regional Trial Court of Cebu for re-raffling.
The principal issue in this case has become moot and academic because Judge Francisco P.
Burgos decided to retire from the Regional Trial Court of Cebu sometime before the latest
reorganization of the judiciary. However, we decide the petition on its merits for the guidance of
the judge to whom this case will be reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They contend
that Judge Burgos has benn shown unusual interest in the proposed sale of the entire estate for
P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim that this disinterest is shown
by the judge's order of March 2, 1979 assessing the property of the estate at P15,000,000.00.
They add that he only ordered the administrator to sell so much of the properties of the estate to
pay the attorney's fees of the lawyers-claimants. To them, the inhibition of Judge Burgos would
have been unreasonable because his orders against the failure of Jose Cuenco Borromeo, as
administrator, to give an accounting and inventory of the estate were all affirmed by the appellate
court. They claim that the respondent court, should also have taken judicial notice of the
resolution of this Court directing the said judge to "expedite the settlement and adjudication of
the case" in G.R. No. 54232. And finally, they state that the disqualification of judge Burgos
would delay further the closing of the administration proceeding as he is the only judge who is
conversant with the 47 volumes of the records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered that Judge
Burgos appointed Ricardo V. Reyes as co-administrator of the estate on October 11, 1972, yet
Borromeo was singled out to make an accounting of what t he was supposed to have received as
rentals for the land upon which the Juliana Trade Center is erected, from January, 1977 to
February 1982, inclusive, without mentioning the withholding tax for the Bureau of Internal
Revenue. In order to bolster the agitation to sell as proposed by Domingo L. Antigua, Judge
Burgos invited Antonio Barredo, Jr., to a series of conferences from February 26 to 28, 1979.
During the conferences, Atty. Antonio Barredo, Jr., offered to buy the shares of the heirsdistributees presumably to cover up the projected sale initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed by petitioner Domingo
L. Antigua praying that Jose Cuenco Borromeo be required to file an inventory when he has
already filed one to account for cash, a report on which the administrators had already rendered:

and to appear and be examined under oath in a proceeding conducted by Judge Burgos lt was
also prayed that subpoena duces tecum be issued for the appearance of the Manager of the
Consolidated Bank and Trust Co., bringing all the bank records in the name of Jose Cuenco
Borromeo jointly with his wife as well as the appearance of heirs-distributees Amelinda
Borromeo Talam and another heir distributee Vitaliana Borromeo. Simultaneously with the filing
of the motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a request for the issuance of
subpoena duces tecum to the Manager of Consolidated Bank and 'Trust Co., Inc.; Register of
Deeds of Cebu City; Register of Deeds for the Province of Cebu and another subpoena duces
tecum to Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the Managert of
the bank, the Register of deeds for the City of Cebu, the Register of Deeds for the Province, of
Cebu. and to Jose Cuenco Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the heirs of
Marcial Borromeo who had a common cause with Atty Barredo, Jr., joined petitioner Domingo
L. Antigua by filing a motion for relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoena duces tecum
to private respondent Jose Cuenco Borromeo to bring and produce all the owners" copies of the
titles in the court presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a subpoena duces tecum commanding Atty. Jose
Cuenco Borromeo to bring and produce the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979, before the
date of the hearing, Judge Burgos issued an order denying the private respondents' motion for
reconsideration and the motion to quash the subpoena.1avvphi1
It was further argued by the private respondents that if ,judge Francisco P. Burgos is not inhibited
or disqualified from trying Sp. Proc. No. 916-R, there would be a miscarriage of justice Because
for the past twelve years, he had not done anything towards the closure of the estate proceedings
except to sell the properties of the heirs-distributees as initiated by petitioner Domingo L.
Antigua at 6.7 million pesos while the Intestate Court had already evaluated it at 15 million
pesos.
The allegations of the private respondents in their motion for inhibition, more specifically, the
insistence of the trial judge to sell the entire estate at P6,700,000.00, where 4/9 group of heirs
objected, cannot easily be ignored. Suspicion of partiality on the part of a trial judge must be
avoided at all costs. In the case of Bautista v. Rebeuno (81 SCRA 535), this Court stated:
... The Judge must maintain and preserve the trust and faith of the parties litigants. He
must hold himself above reproach and suspicion. At the very first sign of lack of faith and
trust to his actions, whether well grounded or not, the Judge has no other alternative but
inhibit himself from the case. A judge may not be legally Prohibited from sitting in a
litigation, but when circumstances appear that will induce doubt to his honest actuations

and probity in favor or of either partly or incite such state of mind, he should conduct a
careful self-examination. He should exercise his discretion in a way that the people's faith
in the Courts of Justice is not impaired, "The better course for the Judge under such
circumstances is to disqualify himself "That way he avoids being misunderstood, his
reputation for probity and objectivity is preserve ed. what is more important, the Ideal of
impartial administration of justice is lived up to.
In this case, the fervent distrust of the private respondents is based on sound reasons. As Earlier
stated, however, the petition for review seeking to modify the decision of the Intermediate
Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further
hearing the Intestate Estate of Vito Borromeo case and ordering the remand of the case to the
Executive Judge of the Regional Trial Court for re-raffling should be DENIED for the decision is
not only valid but the issue itself has become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on any and all incidents in
Special Proceedings No. 916-R during the pendency of this petition and No. 63818. They also
pray that all acts of the respondents related to the said special proceedings after March 1, 1983
when the respondent Judge was disqualified by the appellate court be declared null and void and
without force and effect whatsoever.
The petitioners state that the respondent Judge has set for hearing all incidents in Special
Proceedings No. 916-R, including the reversion from the heirs-distributees to the estate, of the
distributed properties already titled in their names as early as 1970, notwithstanding the pending
inhibition case elevated before this Court which is docketed as G.R. No. 63818.
The petitioners further argue that the present status of Special Proceeding No. 916-R requires
only the appraisal of the attorney's fees of the lawyers-claimants who were individually hired by
their respective heirs-clients, so their attorney's fees should be legally charged against their
respective clients and not against the estate.
On the other hand, the respondents maintain that the petition is a dilatory one and barred by res
judicata because this Court on July 8, 1981, in G.R. No. 54232 directed the respondent Judge to
expedite the settlement and liquidation of the decedent's estate. They claim that this resolution,
which was already final and executory, was in effect reversed and nullified by the Intermediate
Appellate Court in its case-AC G.R.-No. SP - 11145 when it granted the petition for certiorari
and or prohibition and disqualified Judge Francisco P. Burgos from taking further cognizance of
Special Proceedings No. 916R as well as ordering the transmission of the records of the case to
the Executive Judge of the Regional Trial Court of Region VII for re-raffling on March 1, 1983,
which was appealed to this Court by means of a Petition for Review (G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are not the obligation of the estate
but of the individual heirs who individually hired their respective lawyers. The portion, therefore,
of the Order of August 15, 1969, segregating the exhorbitantly excessive amount of 40% of the
market value of the estate from which attorney's fees shall be taken and paid should be deleted.

Due to our affirmance of the decision of the Intermediate Appellate Court in G.R. No. 63818, we
grant the petition.
WHEREFORE,
(1) In G.R. No. 41171, the order of the respondent judge dated December 24, 1974,
declaring the respondent entitled to 5/9 of the estate of the late Vito Borromeo and the
order dated July 7, 1975, denying the petitioner's motion for reconsideration of the
aforementioned order are hereby SET ASIDE for being NULL and VOID;
(2) In G.R. No. 55000, the order of the trial court declaring the waiver document valid is
hereby SET ASIDE;
(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of the
Intermediate Appellate Court disqualifying and ordering the inhibition of Judge Francisco
P. Burgos from further hearing Special Proceedings No. 916-R is declared moot and
academic. The judge who has taken over the sala of retired Judge Francisco P. Burgos
shall immediately conduct hearings with a view to terminating the proceedings. In the
event that the successor-judge is likewise disqualified, the order of the Intermediate
Appellate Court directing the Executive Judge of the Regional Trial Court of Cebu to reraffle the case shall be implemented:
(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking to restrain
Judge Francisco P. Burgos from further acting in G.R. No. 63818 is MOOT and
ACADEMIC:
(5) In G.R, No, 62895, the trial court is hereby ordered to speedily terminate the close
Special Proceedings No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the cash and bank deposits by the petitioneradministrator of the estate as required by this Court in its Resolution dated June 15, 1983;
and
(6) The portion of the Order of August 15, 1969, segregating 40% of the market value of
the estate from which attorney's fees shall be taken and paid should be, as it is hereby
DELETED. The lawyers should collect from the heirs-distributees who individually hired
them, attorney's fees according to the nature of the services rendered but in amounts
which should not exceed more than 20% of the market value of the property the latter
acquired from the estate as beneficiaries.
SO ORDERED.

G.R. No. 129008

January 13, 2004

TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her husband

ZALDY EVANGELISTA, ALBERTO ORFINADA, and ROWENA O. UNGOS, assisted by
her husband BEDA UNGOS, petitioners,
vs.
COURT OF APPEALS, ESPERANZA P. ORFINADA, LOURDES P. ORFINADA,
ALFONSO ORFINADA, NANCY P. ORFINADA, ALFONSO JAMES P. ORFINADA,
CHRISTOPHER P. ORFINADA and ANGELO P. ORFINADA, respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of the estate pending the appointment of an
administrator is the issue in this case.
This Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeks to set aside
the Decision1 of the Court of Appeals in CA-G.R. SP No. 42053 dated January 31, 1997, as well
as its Resolution2 dated March 26, 1997, denying petitioners motion for reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in Angeles City leaving several
personal and real properties located in Angeles City, Dagupan City and Kalookan City.3 He also
left a widow, respondent Esperanza P. Orfinada, whom he married on July 11, 1960 and with
whom he had seven children who are the herein respondents, namely: Lourdes P. Orfinada,
Alfonso "Clyde" P. Orfinada, Nancy P. Orfinada-Happenden, Alfonso James P. Orfinada,
Christopher P. Orfinada, Alfonso Mike P. Orfinada (deceased) and Angelo P. Orfinada.4
Apart from the respondents, the demise of the decedent left in mourning his paramour and their
children. They are petitioner Teodora Riofero, who became a part of his life when he entered into
an extra-marital relationship with her during the subsistence of his marriage to Esperanza
sometime in 1965, and co-petitioners Veronica5, Alberto and Rowena.6
On November 14, 1995, respondents Alfonso James and Lourdes Orfinada discovered that on
June 29, 1995, petitioner Teodora Rioferio and her children executed an Extrajudicial Settlement
of Estate of a Deceased Person with Quitclaim involving the properties of the estate of the
decedent located in Dagupan City and that accordingly, the Registry of Deeds in Dagupan issued
Certificates of Titles Nos. 63983, 63984 and 63985 in favor of petitioners Teodora Rioferio,
Veronica Orfinada-Evangelista, Alberto Orfinada and Rowena Orfinada-Ungos. Respondents
also found out that petitioners were able to obtain a loan of P700,000.00 from the Rural Bank of
Mangaldan Inc. by executing a Real Estate Mortgage over the properties subject of the extrajudicial settlement.7

On December 1, 1995, respondent Alfonso "Clyde" P. Orfinada III filed a Petition for Letters of
Administration docketed as S.P. Case No. 5118 before the Regional Trial Court of Angeles City,
praying that letters of administration encompassing the estate of Alfonso P. Orfinada, Jr. be
issued to him.8
On December 4, 1995, respondents filed a Complaint for the Annulment/Rescission of Extra
Judicial Settlement of Estate of a Deceased Person with Quitclaim, Real Estate Mortgage and
Cancellation of Transfer Certificate of Titles with Nos. 63983, 63985 and 63984 and Other
Related Documents with Damages against petitioners, the Rural Bank of Mangaldan, Inc. and the
Register of Deeds of Dagupan City before the Regional Trial Court, Branch 42, Dagupan City.9
On February 5, 1996, petitioners filed their Answer to the aforesaid complaint interposing the
defense that the property subject of the contested deed of extra-judicial settlement pertained to
the properties originally belonging to the parents of Teodora Riofero10 and that the titles thereof
were delivered to her as an advance inheritance but the decedent had managed to register them in
his name.11 Petitioners also raised the affirmative defense that respondents are not the real
parties-in-interest but rather the Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the
administration proceedings.12 On April 29, 1996, petitioners filed a Motion to Set Affirmative
Defenses for Hearing13 on the aforesaid ground.
The lower court denied the motion in its Order14 dated June 27, 1996, on the ground that
respondents, as heirs, are the real parties-in-interest especially in the absence of an administrator
who is yet to be appointed in S.P. Case No. 5118. Petitioners moved for its reconsideration15 but
the motion was likewise denied.16
This prompted petitioners to file before the Court of Appeals their Petition for Certiorari under
Rule 65 of the Rules of Court docketed as CA G.R. S.P. No. 42053.17 Petitioners averred that the
RTC committed grave abuse of discretion in issuing the assailed order which denied the
dismissal of the case on the ground that the proper party to file the complaint for the annulment
of the extrajudicial settlement of the estate of the deceased is the estate of the decedent and not
the respondents.18
The Court of Appeals rendered the assailed Decision19 dated January 31, 1997, stating that it
discerned no grave abuse of discretion amounting to lack or excess of jurisdiction by the public
respondent judge when he denied petitioners motion to set affirmative defenses for hearing in
view of its discretionary nature.
A Motion for Reconsideration was filed by petitioners but it was denied.20 Hence, the petition
before this Court.
The issue presented by the petitioners before this Court is whether the heirs have legal standing
to prosecute the rights belonging to the deceased subsequent to the commencement of the
administration proceedings.21
Petitioners vehemently fault the lower court for denying their motion to set the case for
preliminary hearing on their affirmative defense that the proper party to bring the action is the

estate of the decedent and not the respondents. It must be stressed that the holding of a
preliminary hearing on an affirmative defense lies in the discretion of the court. This is clear
from the Rules of Court, thus:
SEC. 5. Pleadings grounds as affirmative defenses.- Any of the grounds for dismissal
provided for in this rule, except improper venue, may be pleaded as an affirmative
defense, and a preliminary hearing may be had thereon as if a motion to dismiss had been
filed.22 (Emphasis supplied.)
Certainly, the incorporation of the word "may" in the provision is clearly indicative of the
optional character of the preliminary hearing. The word denotes discretion and cannot be
construed as having a mandatory effect.23 Subsequently, the electivity of the proceeding was
firmed up beyond cavil by the 1997 Rules of Civil Procedure with the inclusion of the phrase "in
the discretion of the Court", apart from the retention of the word "may" in Section 6,24 in Rule 16
thereof.
Just as no blame of abuse of discretion can be laid on the lower courts doorstep for not hearing
petitioners affirmative defense, it cannot likewise be faulted for recognizing the legal standing
of the respondents as heirs to bring the suit.
Pending the filing of administration proceedings, the heirs without doubt have legal personality
to bring suit in behalf of the estate of the decedent in accordance with the provision of Article
777 of the New Civil Code "that (t)he rights to succession are transmitted from the moment of
the death of the decedent." The provision in turn is the foundation of the principle that the
property, rights and obligations to the extent and value of the inheritance of a person are
transmitted through his death to another or others by his will or by operation of law.25
Even if administration proceedings have already been commenced, the heirs may still bring the
suit if an administrator has not yet been appointed. This is the proper modality despite the total
lack of advertence to the heirs in the rules on party representation, namely Section 3, Rule 326
and Section 2, Rule 8727 of the Rules of Court. In fact, in the case of Gochan v. Young,28 this Court
recognized the legal standing of the heirs to represent the rights and properties of the decedent under administration
pending the appointment of an administrator. Thus:
The above-quoted rules,29 while permitting an executor or administrator to represent or to bring suits on
behalf of the deceased, do not prohibit the heirs from representing the deceased. These rules are easily
applicable to cases in which an administrator has already been appointed. But no rule categorically
addresses the situation in which special proceedings for the settlement of an estate have already been
instituted, yet no administrator has been appointed. In such instances, the heirs cannot be expected to
wait for the appointment of an administrator; then wait further to see if the administrator appointed would
care enough to file a suit to protect the rights and the interests of the deceased; and in the meantime do
nothing while the rights and the properties of the decedent are violated or dissipated.
Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz: (1) if the executor or
administrator is unwilling or refuses to bring suit;30 and (2) when the administrator is alleged to have participated in
the act complained of31 and he is made a party defendant.32 Evidently, the necessity for the heirs to seek judicial
relief to recover property of the estate is as compelling when there is no appointed administrator, if not more, as
where there is an appointed administrator but he is either disinclined to bring suit or is one of the guilty parties
himself.

All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of property of the estate
during the pendency of administration proceedings has three exceptions, the third being when there is no appointed
administrator such as in this case.
As the appellate court did not commit an error of law in upholding the order of the lower court, recourse to this
Court is not warranted.
WHEREFORE, the petition for review is DENIED. The assailed decision and resolution of the Court of Appeals are
hereby AFFIRMED. No costs.
SO ORDERED.