Art 1061

Aranas v Mercado

order one or more of the inheritance tax appraisers to give his or

their assistance.

Emigdio) died intestate on January 12, 1991, survived by his

second wife, Teresita V. Mercado (Teresita), and their five children,
namely: Allan V. Mercado, Felimon V. Mercado, Carmencita M.
Sutherland, Richard V. Mercado, and Maria Teresita M. Anderson;
and his two children by his first marriage, namely: respondent
Franklin L. Mercado and petitioner Thelma M. Aranas (Thelma).

usage of the word all in Section 1, supra, demands the inclusion of

all the real and personal properties of the decedent in the
inventory.22 However, the word all is qualified by the phrase which
has come into his possession or knowledge, which signifies that the
properties must be known to the administrator to belong to the
decedent or are in her possession as the administrator. Section 1
allows no exception, for the phrase true inventory implies that no
properties appearing to belong to the decedent can be excluded
from the inventory, regardless of their being in the possession of
another person or entity.

As the administrator, Teresita submitted an inventory of the estate

of Emigdio on December 14, 1992 for the consideration and
approval by the RTC. She indicated in the inventory that at the time
of his death, Emigdio had left no real properties but only personal
properties worth P6,675,435.25 in all, consisting of cash of
P32,141.20; furniture and fixtures worth P20,000.00; pieces of
jewelry valued at P15,000.00; 44,806 shares of stock of Mervir
Realty worth P6,585,585.80; and 30 shares of stock of Cebu
Emerson worth P22,708.25.2
Claiming that Emigdio had owned other properties that were
excluded from the inventory, Thelma moved that the RTC direct
Teresita to amend the inventory, and to be examined regarding it.
RTC - Teresita had excluded properties that should be included
Teresita - real properties affected, Lot No. 3353 located in Badian,
Cebu, had already been sold to Mervir Realty, and that the parcels
of land covered by the deed of assignment had already come into
the possession of and registered in the name of Mervir Realty.
Did the RTC commit grave abuse of discretion
in directing the inclusion of the properties
in the estate of the decedent? NO
Section 1. Inventory and appraisal to be returned within three
months. Within three (3) months after his appointment every
executor or administrator shall return to the court a true
inventory and appraisal of all the real and personal estate
of the deceased which has come into his possession or
knowledge. In the appraisement of such estate, the court may

RTC that presides over the administration of an estate is vested

with wide discretion on the question of what properties should be
included in the inventory.
To dispute that the jurisdiction of the trial court as an intestate
court is special and limited. The trial court cannot adjudicate title
to properties claimed to be a part of the estate but are claimed to
belong to third parties by title adverse to that of the decedent and
the estate, not by virtue of any right of inheritance from the
decedent. All that the trial court can do regarding said properties is
to determine whether or not they should be included in the
inventory of properties to be administered by the administrator.
Such determination is provisional and may be still revised.
However, this general rule is subject to exceptions as justified by
expediency and convenience.
First, the probate court may provisionally pass upon in an
intestate or a testate proceeding the question of inclusion
in, or exclusion from, the inventory of a piece of property
without prejudice to final determination of ownership in a
separate action. Second, if the interested parties are all heirs to
the estate, or the question is one of collation or advancement, or
the parties consent to the assumption of jurisdiction by the
probate court and the rights of third parties are not
impaired, then the probate court is competent to resolve
issues on ownership. Verily, its jurisdiction extends to matters

incidental or collateral to the settlement and distribution of the

estate, such as the determination of the status of each heir and
whether the property in the inventory is conjugal or
exclusive property of the deceased spouse

decedent.38
The determination of which properties should be excluded from or
included in the inventory of estate properties was well within the
authority and discretion of the RTC as an intestate court.

although the title over Lot 3353 was already registered in the name
of Mervir Realty, the RTC made findings that put that title in
dispute. Civil Case No. CEB12692, a dispute that had involved the
ownership of Lot 3353, was resolved in favor of the estate of
Emigdio, and Transfer Certificate of Title No. 3252 covering Lot
3353 was still in Emigdios name. Indeed, the RTC noted in the
order of March 14, 2001, or ten years after his death, that Lot 3353
had remained registered in the name of Emigdio
fact that the deed of absolute sale executed by Emigdio in favor of
Mervir Realty was a notarized instrument did not sufficiently justify
the exclusion from the inventory of the properties involved. A
notarized deed of sale only enjoyed the presumption of regularity
in favor of its execution, but its notarization did not per se
guarantee the legal efficacy of the transaction under the deed, and
what the contents purported to be.
the inventory of the estate of Emigdio must be prepared and
submitted for the important purpose of resolving the difficult issues
of collation and advancement to the heirs. Article 1061 of the Civil
Code required every compulsory heir and the surviving spouse,
herein Teresita herself, to bring into the mass of the estate any
property or right which he (or she) may have received from the
decedent, during the lifetime of the latter, by way of donation, or
any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of
the partition. Section 2, Rule 90 of the Rules of Court also
provided that any advancement by the decedent on the legitime of
an heir may be heard and determined by the court having
jurisdiction of the estate proceedings, and the final order of the
court thereon shall be binding on the person raising the questions
and on the heir. Rule 90 thereby expanded the special and limited
jurisdiction of the RTC as an intestate court about the matters
relating to the inventory of the estate of the decedent by
authorizing it to direct the inclusion of properties donated or
bestowed by gratuitous title to any compulsory heir by the

Art 1062
De Roma v CA
Facts: Candeleria De Roma adopted two daughters, Buhay and
Rosalinda. She died intestate. When administration proceedings
was ongoing, Buhay was appointed administratrix and filed an
inventory of the estate.
Opposed by Rosalinda on the ground that certain properties
donated by their mother to Buhay and fruits thereof had not been
included. The Parcels of Land totaled P10,297.50 and the value is
not disputed.
The TC issued an order in favor of Buhay because when Candelaria
donated the properties to Buhay she said in the Deed of Donation
sa pamamagitan ng pagbibigay na din a mababawing muli which
the TC interpreted as a prohibition to collate and besides the
legitimes of the two daughters were not impaired. On appeal, it
was reversed as it merely described the donation as irrevocable
not an express prohibition to collate.
Issue: Whether or not these lands are subject to collation.
Held: The pertinent Civil Code provisions are:
Art. 1061. Every compulsory heir, who succeeds with other
compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other

gratuitous title, in order that it may be computed in the

determination of the legitime of each heir, and in the account of
the partition. (1035a)

5.

Art. 1062. Collation shall not take place among compulsory heirs if
the donor should have so expressly provided, or if the donee
should repudiate the inheritance, unless the donation should be
reduced as inofficious. (1036)
The SC affirmed the appellate courts decision and that it merely
described the donation as irrevocable. The Fact that a donation is
irrevocable does not necessarily exempt the donated properties
from collation as required under the provisions of the NCC. Given
the precise language of the deed of donation the decedent donor
would have included an express prohibition to collate if that had
been the donors intention. Absent such indication of that
intention, the rule not the exemption should be applied.
Art 1063
Dizon-Rivera v Dizon
FACTS: In 1961, Agripina Valdez (widow) died and was survived by
seven compulsory heirs: 6 legitimate children and 1 legitimate
granddaughter. Marina is the appellee while the others were the
appellants
1. Valdez left a w ill executed in February 1960 and written in
Pampango. The beneficiaries were the 7 compulsory heirs
and six grandchildren
2. In her will, Valdez distributed and disposed of her properties
(assessed at P1.8 million) which included real and personal
properties and shares of stocks at Pampanga Sugar Central
Devt Co
3. During the probate proceedings, Marina (appellee) was name
the executor of the deceaseds estate
4. In her will, Valdez commanded that her property be divided
in accordance with her testamentary disposition where she
devised and bequeathed specific real properties comprising
almost her entire estate among her heirs. Based on the

6.

7.

partition, Marina and Tomas were to receive more than the

other heirs
Subsequently, Marina filed her project of partition
adjudicating the estate as follows:
a. the legitime computed for each compulsory heir was
P129,254.96, which was comprised of cash and/or
properties specifically given to them based on the will
b. Marina and Tomas were adjudicated the properties that
they received in the will less the cash/properties to
complete their respective legitime
The other heirs opposed the partition and proposed a
counter-partition on the estate where Marina and Tomas were
to receive considerably less
The lower court approved the executors project of partition
citing that Art 906 and 907 NCC specifically provide that
when the legitime is impaired or prejudiced, the same shall
be completed. The court cited that if the proposition of the
oppositors was upheld, it will substantially result in a
distribution of intestacy which is a violation of Art 791 NCC

ISSUE: WON the last will of the deceased is to be considered

controlling in this case
HELD: Yes. Art 788 and 791 NCC provide that "If a testamentary
disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be
preferred" and "The words of a will are to receive an interpretation
which will give to every expression some effect, rather than one
which will render any of the expressions inoperative; and of two
modes of interpreting a will, that is to be preferred which will prevent
intestacy." In Villanueva v. Juico, the SC held that "the intentions
and wishes of the testator, when clearly expressed in his will,
constitute the fixed law of interpretation, and all questions
raised at the trial, relative to its execution and fulfillment,
must be settled in accordance therewith, following the plain

and literal meaning of the testator's words, unless it clearly

appears that his intention was otherwise."

the cash and/or properties of Marina and Tomas, who were obviously
favored by the decedent in her will.

The testator's wishes and intention constitute the first and principal
law in the matter of testaments, and to paraphrase an early decision
of the Supreme Court of Spain, when expressed clearly and precisely
in his last will, amount to the only law whose mandate must
imperatively be faithfully obeyed and complied with by his executors,
heirs and devisees and legatees, and neither these interested parties
nor the courts may substitute their own criterion for the testator's
will. Thus, the oppositors proposition for partition cannot be given
effect.

Aside from the provisions of Art 906 and 907, other codal provisions
support the executrix-appellee's project of partition as approved by
the lower court rather than the counter-project of partition proposed
by oppositors-appellants whereby they would reduce the
testamentary disposition or partition made by the testatrix to onehalf and limit the same, which they would consider as mere devises
and legacies, to one-half of the estate as the disposable free portion,
and apply the other half of the estate to payment of the legitimes of
the seven compulsory heirs. Oppositors' proposal would amount
substantially to a distribution by intestacy and pro tanto nullify the
testatrix's will, contrary to Art 791 NCC.

ON PARTITION: The testamentary disposition of the decedent

was in the nature of a partition. In her will, the decedent noted
that after commanding that upon her death all her obligations as well
as the expenses of her last illness and funeral and the expenses for
the probate of her last will and for the administration of her property
in accordance with law, be paid, she expressly provided that "it
is my wish and I command that my property be divided" in
accordance with the dispositions immediately thereafter
following, whereby she specified each real property in her
estate and designated the particular heir among her seven
compulsory heirs and seven other grandchildren to whom
she bequeathed the same. This was a valid partition of her
estate, as contemplated and authorized in the first
paragraph of Art 1080 NCC, providing that "Should a person
make a partition of his estate by an act inter vivos or by will,
such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs."
CAB: This was properly complied with in the executors project of
partition as the oppositors were adjudicated the properties
respectively distributed and assigned to them by the decedent in her
will and the differential to complete their legitimes were taken from

EFFECT OF PARTITION: 'A partition legally made confers upon each

heir the exclusive ownership of the property adjudicated to him",
from the death of her ancestors, subject to rights and obligations of
the latter, and, she cannot be deprived of her rights thereto except
by the methods provided for by law
DEVISES: The adjudication and assignments in the testatrix's will of
specific properties to specific heirs cannot be considered all devises,
for it clearly appears from the whole context of the will and the
dispositions by the testatrix of her whole estate (save for some small
properties of little value already noted at the beginning of this
opinion) that her clear intention was to partition her whole estate
through her will. Furthermore, the testatrix's intent that her
testamentary dispositions were by way of adjudications to the
beneficiaries as heirs and not as mere devisees, and that said
dispositions were therefore on account of the respective legitimes of
the compulsory heirs is expressly borne out in the fourth paragraph
of her will, immediately following her testamentary adjudications in
the third paragraph in this wise: "FOURTH: I likewise command that in
case any of those I named as my heirs in this testament any of them
shall die before I do, his forced heirs under the law enforced at the

time of my death shall inherit the properties I bequeath to said

deceased."
COLLATION: Collation is not applicable in this case because here,
distribution and partition of the entire estate was made by the
testatrix, without her having made any previous donations during her
lifetime which would require collation to determine the legitime of
each heir nor having left merely some properties by will which would
call for the application of Art 1061 to 1063 of the Civil Code on
collation.
CAN THE OPPOSITORS DEMAND MORE THAN THEIR LEGITIME? No.
Their right was merely to demand completion of their legitime under
Article 906 of the Civil Code and this has been complied with in the
approved project of partition, and they can no longer demand a
further share from the remaining portion of the estate, as
bequeathed and partitioned by the testatrix principally to the
executrix-appellee.

Art 1060
Alsua-Betts v CA
Husband and wife entered into an extra judicial partition with their
children; husband and wife also made a holographic will
bequeathing their properties to their children;

Thereafter, the wife died; husband cancelled his

holographic will and made a formal notarial will bequeathing his
properties to his children but specifically favoring his daughter
Francisca;

Other children opposed;

Issue:
Is the Don bound by the extrajudicial partition and can no longer
execute a subsequent will?
Held:

The respondent court erred in denying probate to the will of

Don Jesus dated November 14, 1959; it erred in holding that
Don Jesus being a party to the extrajudicial partition of
1949 was contractually bound by the provisions thereof
and hence could not revoke his participation therein by the
simple expedience of making a new will with contrary
provisions or dispositions. It is an error because the so-called
extrajudicial partition of 1949 is void and inoperative as a partition;
neither is it a valid or enforceable contract because it
involved future inheritance; it may only be given effect as a
donation inter vivos of specific properties to the heirs made
by the parents.

Dimayuga v CA

Husband and Wife own a homestead; they have a son,

Manuel;

Wife died while Husband thereafter married his mistress to

which he has 5 children;

Husband adjudicated for himself the homestead own by him

and first wife then donated it to his illegitimate children thereby
impairing the legitime of his legitimate son;

Manuel filed an action to secure the property in question;

court granted him share while Nelia, the other legitimate
daughter to the second wife got ;

The illegitimate children opposed claiming that Manuel is in

estoppel;
Held:

Article 1056 of the old Civil Code provides that "if the
testator should make a partition of his property by an act inter
vivos, or by will, such partition shall stand insofar, as it does not
prejudice the legitime of the forced heirs."

Article 1056 was construed to mean that a person who

makes an inter vivos partition must first execute a will. If the will is
void, the partition is void (Legasto vs. Verzosa, 54 Phil. 766; Fajardo
vs. Fajardo, 54 Phil. 842; Romero v. Villamor, 102 Phil. 641). With
more reason would the partition be void if there was no win.

In "donating" the said one-half portion to his six illegitimate

children, Genaro deprived Manuel of his legitime in his estate or, in
effect, made him renounce his future inheritance. The 1951
affidavit cannot be construed as a repudiation of his inheritance in
his father's estate because the document does not have that tenor.
For this reason, Manuel is not estopped to ignore that partition.

Chavez v IAC
Presentacion, Floserfina and Raquel sold their shares to a divided
paraphernal lot of their mother to their sister, Concepcion (1/6
each) with the conformity of their mother, Manuela;
However, a few years later, Manuela sold the entire lot to Raquel;
Thereafter, Manuela sold the lot to Pepito Ferrer;
Issue:
Was the partition inter vivos valid? Was the sale to Raquel invalid?
Held:

Article 1080 of the New Civil Code allows a person to

make a partition of his estate either by an act inter vivos or
by will and such partition shall be respected insofar as it
does not prejudice the legitime of the compulsory heirs.
While the law prohibits contracts upon future inheritance, the
partition by the parent, as provided in Art. 1080, is a case
expressly authorized by law (Art. 1347, par. 2) Art. 1080 of the Civil
Code clearly gives a person two options in making a partition of his
estate; either by an act inter vivos or by WILL.

When a person makes a partition by will, it is

imperative that such partition must be executed in
accordance with the provisions of the law on wills;
however, when a person makes the partition of his estate
by an act inter vivos, such partition may even be oral or
written, and need not be in the form of a will, provided that
the partition does not prejudice the legitime of compulsory
heirs.

In the instant case, the respondent appellate court declared

the Deeds of Sale executed by Presentacion, Floserfina and Raquel
in favor of Concepcion Chavez as evidence of a valid partition of

the land in question by and between Manuela Buenavista and her

children as she not only gave her authority thereto but also signed
the sales.

The Deeds of Sale are not contracts entered into with

respect to feature inheritance but a contract perfected and
consummated during the lifetime of Manuela Buenavista
who signed the same and gave her consent thereto. Such
partition inter vivos, executed by the property owner
herself, is valid.

.... As the defendants freely participated in the

partition, they are now estopped from denying and
repudiating the consequences of their own voluntary acts.
It is a general principle of law that no one may be permitted to
disavow and go back upon his own acts, or to proceed contrary
thereto. (Joaquin vs. Mitsumine 34 Phil. 858.)

Where a piece of land has been included in a

partition, and there is no allegation that the inclusion was
effected through improper means or without the
petitioner's knowledge, the partition barred any further
litigation on said title and operated to bring the property
under the control and jurisdiction of the court for proper
disposition according to the tenor of the partition... They
cannot attack the partition collaterally ... (Ralla vs. Judge Untalan,
172 SCRA 858, 865, citing the case of Torres vs. Encarnacion and
De Borja, No. L-4681, July 31, 1951, 89 Phil. 678.)

As well argued by counsel for the respondents in their

memorandum, it would be unjust and inequitable to allow
Manuela Buenavista Vda. de Chavez to revoke the sales she
herself authorized as well as the sale she herself executed
in favor of her son only to execute a simulated sale in favor
of her daughter Raquel who had already profited from the
sale she made of the property she had received in the
partition inter vivos; it would run counter to the doctrine that
"no person should be allowed to unjustly enrich herself at the
expense of another."

Art 1070
Maestrado v CA
These consolidated cases involve Lot No. 5872 and the rights of
the contending parties thereto. The lot has an area of 57.601 sq.m.
and is registered in the name of the deceased spouses Ramon
and Rosario Chaves.
The spouses died intestate in 1943 and 1944, respectively. They
were survived by six heirs.
To settle the estate of said spouse, Angel Chaves, one of the heirs,
initiated intestate proceedings and was appointed administrator of
said estates in the process. An inventory of the estates was made
and thereafter, the heirs agreed on a project partition. The
court approved the partition but a copy of said decision was
missing. Nonetheless, the estate was divided among the heirs.
Subsequently, in 1956, the partition case effected and the
respective shares of the heirs were delivered to them. Significantly,
Lot No.5872 was not included in a number of documents. Parties
offered different explanations as to the omission of said lot in the
documents.

Petitioners maintain the existence of an oral partition agreement

entered into by all heirs after the death of their parents. To set
things right, petitioners then prepared a quitclaim to confirm the
alleged oral agreement. Respondents dispute voluntariness of their
consent to the quitclaims.
Six years after the execution of the quitclaims, respondents
discovered that indeed subject lot was still a common property in
the name of the deceased spouses.
Eventually, an action for Quieting of Title was filed by petitioners
on December 22, 1983. The trial court considered Lot No. 5872 as
still a common property and therefore must be divided into six
parts, there being six heirs. Petitioners appealed to the Court of
Appeals which sustained the decision of the trial court.

It may be effected extra-judicially by the heirs themselves through

a public instrument filed before the register of deeds.
However, as between the parties, a public instrument is neither
constitutive nor an inherent element of a contract of partition.
Since registration serves as constructive notice to third persons, an
oral partition by the heirs is valid if no creditors are affected.
Moreover, even the requirement of a written memorandum under
the statute of frauds does not apply to partitions effected by
the heirs where no creditors are involved considering that such
transaction is not a conveyance of property resulting in change of
ownership but merely a designation and segregation of that part
which belongs to each heir.

ISSUE: Whether or not the action for quieting of title had already
prescribed.
Lot No. 5872 is no longer common property of the heirs of the
deceased spouses Ramon and Rosario Chaves.
Petitioners ownership over said lot was acquired by reason of the
oral partition agreed upon by the deceased spouses heirs
sometime before 1956.
That oral agreement was confirmed by the notarized quitclaims
executed by the said heirs on August 16, 1977 and September 8,
1977. There was indeed an oral agreement of partition entered into
by the heirs/parties.
A possessor of real estate property is presumed to have title
thereto unless the adverse claimant establishes a better right. In
the instant case it is the petitioners, being the possessors of Lot
No. 5872, who have established a superior right thereto by virtue
of the oral partition which was also confirmed by the notarized
quitclaims of the heirs. Partition is the separation, division and
assignment of a thing held in common among those to whom it
may belong.

Art 1078
Alejandrino v CA
The facts show that the late spouses Jacinto Alejandrino and
Enrica Labunos left their six children named Marcelino, Gregorio,
Ciriaco, Mauricia, Laurencia and Abundio a 219-square-meter lot in
Mambaling, Cebu City identified as Lot No. 2798 and covered by
Transfer Certificate of Title No. 19658. Upon the demise of the
Alejandrino spouses, the property should have been divided among
their children with each child having a share of 36.50 square
meters. However, the estate of the Alejandrino spouses was not
settled in accordance with the procedure outlined in the Rules of
Court.
Petitioner Mauricia (one of the children) allegedly purchased
12.17 square meters of Gregorios share, 36.50 square meters of
Ciriacos share and 12.17 square meters of Abundios share thereby

giving her a total area of 97.43 square meters, including her own
share of 36.50 square meters. It turned out, however, that a third
party named Licerio Nique, the private respondent in this case,
also purchased portions of the property, to wit: 36.50 square
meters from Laurencia, 36.50 square meters from Gregorio through
Laurencia, 12.17 square meters from Abundio also through
Laurencia and 36.50 square meters from Marcelino or a total area
of 121.67 square meters of the Alejandrino property.
However, Laurencia (the alleged seller of most of the 121.67
square meters of the property) later questioned the sale in an
action for quieting of title and damages against private respondent
Nique. It was docketed as Civil Case No. CEB-7038 in the Regional
Trial Court of Cebu City, Branch 9, presided by Judge Benigno G.
Gaviola. In due course, the lower court rendered a decision on
November 27, 1990 disposing of the case as follows: the Court
hereby declares defendant as the owner in fee simple of the share
of plaintiff Laurencia Alejandrino and the shares of Marcelino,
Gregorio and Abundio, all surnamed Alejandrino, of the parcel of
land known as Lot No. 2798
Laurencia appealed the decision to the Court of Appeals
under CA-G.R. CV No. 33433 but later withdrew the same On April
13, 1992, the Court of Appeals considered the appeal withdrawn in
accordance with Rule 50 of the Rules of Courtt
Meanwhile, herein petitioner Mauricia Alejandrino filed on
May 5, 1992 before the Regional Trial Court of Cebu City, Branch
VII, a complaint for redemption and recovery of properties with
damages against private respondent Nique that was docketed as
Civil Case No. CEB-11673. Adelino B. Sitoy, Laurencias counsel in
Civil Case No. CEB-7038, filed Civil Case No. CEB-11673 for
petitioner Mauricia.
The amended complaint in the latter case dated May 17,
1992 alleged that private respondent Nique never notified
petitioner Mauricia of the purchase of 121.67 square meters of the
undivided Lot No. 2798 nor did he give petitioner Mauricia the
preemptive right to buy the area as a co-owner of the same lot. As
such co-owner, petitioner Mauricia manifested her willingness to
deposit with the court the amount of P29,777.78, the acquisition
cost of the portion purchased by private respondent Nique.

Petitioner Mauricia also alleged that she demanded from private

respondent the area of around 24.34 square meters that the latter
had unduly, baselessly and maliciously claimed as his own but
which, as part of Lot No. 2798, actually belongs to her. The
amended complaint prayed that petitioner Mauricia be allowed to
redeem the area of 121.67 square meters under the redemption
price of P29,777.78 and that private respondent Nique be ordered
to execute the necessary documents for the redemption and the
eventual transfer of certificate of title to her. The amended
complaint further prayed for the return to petitioner Mauricia of the
24.34-square-meter portion of the lot and for damages amounting
to P115,000 and attorneys fees of P30,000.
In Civil Case No. CEB-7038 in the meantime, private
respondent filed a motion for the segregation of the 146-squaremeter portion of the property that had been declared by the trial
court as his own by virtue of purchase. Court
denying the motion for reconsideration filed by plaintiffs and
allowing the issuance of a writ of execution, the Court is inclined to
Grant the instant motion.
petitioner assails the decision of the Court of Appeals,
contending that the lower court acted beyond its jurisdiction in
ordering the segregation of the property bought by private
respondent as the same was not decreed in its judgment, which
had long become final and executory. Petitioner argues that
partition of the property cannot be effected because private
respondent is also a defendant in Civil Case No. CEB-11673. She
asserts that Exhibit 16, the extrajudicial settlement of estate
referred to in the questioned order of the lower court, was not
discussed in the decision of the lower court and even if it were, she
could not be bound thereby considering that she was not a party
litigant in Civil Case No. CEB-7038. She questions the validity of
the deed of extrajudicial settlement because it was not notarized
or published.
Under the circumstances of this case, the ultimate issue that
needs determination is whether or not as an heir of the Alejandrino
property, Laurencia may validly sell specific portions thereof to a
third party.
Article 1078 of the Civil Code provides that where there are

two or more heirs, the whole estate of the decedent is, before
partition, owned in common by such heirs, subject to the payment
of the debts of the deceased. Under a co-ownership, the ownership
of an undivided thing or right belongs to different persons. Each
co-owner of property which is held pro indiviso exercises his rights
over the whole property and may use and enjoy the same with no
other limitation than that he shall not injure the interests of his coowners. The underlying rationale is that until a division is made,
the respective share of each cannot be determined and every coowner exercises, together with his co-participants, joint ownership
over the pro indiviso property, in addition to his use and enjoyment
of the same
Although the right of an heir over the property of the
decedent is inchoate as long as the estate has not been fully
settled and partitioned law allows a co-owner to exercise rights of
ownership over such inchoate right.
With respect to properties shared in common by virtue of
inheritance, alienation of a pro indiviso portion thereof is
specifically governed by Article 1088 that provides:
ART. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for
the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the
vendor.
In the instant case, Laurencia was within her hereditary
rights in selling her pro indiviso share in Lot No. 2798. However,
because the property had not yet been partitioned in accordance
with the Rules of Court, no particular portion of the property could
be identified as yet and delineated as the object of the sale. Thus,
interpreting Article 493 of the Civil Code providing that an
alienation of a co-owned property shall be limited to the portion
which may be allotted to (the seller) in the division upon the
termination of the co-ownership,
`x x x since a co-owner is entitled to sell his undivided share, a
sale of the entire property by one co-owner without the consent of
the other co-owners is not null and void. However, only the rights

of the co-owner-seller are transferred, thereby making the buyer a

co-owner of the property.
`The proper action in cases like this is not for the nullification of
the sale or for the recovery of possession of the thing owned in
common from the third person who substituted the co-owner or coowners who alienated their shares, but the DIVISION of the
common property of the co-owners who possessed and
administered it.
The trial court may not, therefore, order partition of an
estate in an action for quieting of title. As there is no pending
administration proceedings, the property of the Alejandrino
spouses can only be partitioned by the heirs themselves in an
extrajudicial settlement of estate. However, evidence on the
extrajudicial settlement of estate was offered before the trial court
and it became the basis for the order for segregation of the
property sold to private respondent. Petitioner Mauricia does not
deny the fact of the execution of the deed of extrajudicial
settlement of the estate. She only questions its validity on account
of the absence of notarization of the document and the nonpublication thereof.
ART. 1082. Every act which is intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, an exchange, a
compromise, or any other transaction.
By this provision, it appears that when a co-owner sells his
inchoate right in the co-ownership, he expresses his intention to
put an end to indivision among (his) co-heirs. Partition among coowners may thus be evidenced by the overt act of a co-owner of
renouncing his right over the property regardless of the form it
takes. In effect, Laurencia expressed her intention to terminate the
co-ownership by selling her share to private respondent.
Moreover, the execution of the deed of extrajudicial
settlement of the estate reflected the intention of both Laurencia
and petitioner Mauricia to physically divide the property. Both of
them had acquired the shares of their brothers and therefore it was
only the two of them that needed to settle the estate. The fact that
the document was not notarized is no hindrance to its effectivity as

regards the two of them. The partition of inherited property need

not be embodied in a public document. In this regard, Tolentino
subscribes to that opinion when he states as follows:
x x x. We believe, however, that the public instrument is not
essential to the validity of the partition. This is not one of those
contracts in which form is of the essence. The public instrument is
necessary only for the registration of the contract, but not for its
validity. The validity of an oral contract among the heirs,
terminating the co-ownership, has been recognized by the
Supreme Court in a decision x x x (where) that tribunal said: `An
agreement among the heirs that a certain lot should be sold and its
proceeds paid to one of them is a valid oral contract, and the same
has the force of law between the parties from and after the original
assent thereto, and no one of them may withdraw or oppose its
execution without the consent of all.
In a still later case, the Supreme Court held that `partition among
heirs or renunciation of an inheritance by some of them is not
exactly a conveyance for the reason that it does not involve
transfer of property from one to the other, but rather a
confirmation or ratification of title or right to property by the heir
renouncing in favor of another heir accepting and receiving the
inheritance. Hence, the court concluded, `it is competent for the
heirs of an estate to enter into an oral agreement for distribution of
the estate among themselves
The deed of extrajudicial settlement executed by Mauricia
and Laurencia evidence their intention to partition the property. It
delineates what portion of the property belongs to each other. That
it was not notarized is immaterial in view of Mauricias admission
that she did execute the deed of extrajudicial settlement. Neither is
the fact that the trial court only mentioned the existence of such
document in its decision in Civil Case No. CEB-7028. That
document was formally offered in evidence and the court is
deemed to have duly considered it in deciding the case. The court
has in its favor the presumption of regularity of the performance of
its task that has not been rebutted by petitioner Mauricia. Neither
may the fact that the other heirs of the Alejandrino spouses,
named Marcelino, Gregorio, Ciriaco and Abundio did not participate
in the extrajudicial settlement of estate affect its validity. In her
amended complaint in Civil Case No. CEB-11673, petitioner

Mauricia herself admitted having acquired by purchase the rights

over the shares of her brothers.
On the part of Laurencia, the court found that she had
transmitted her rights over portions she had acquired from her
brothers to private respondent Nique. The sale was made after the
execution of the deed of extrajudicial settlement of the estate that
private respondent himself witnessed. The extrajudicial settlement
of estate having constituted a partition of the property, Laurencia
validly transferred ownership over the specific front portion of the
property with an area of 146 square meters.
The trial court, therefore, did not abuse its discretion in
issuing the order for the segregation of the property. In so doing, it
was merely reiterating the partition of the property by petitioner
Mauricia and her sister Laurencia that was embodied in the deed of
extrajudicial settlement of estate. The order may likewise be
deemed as a clarification of its decision that had become final and
executory. Such clarification was needed lest proper execution of
the decision be rendered futile.

Was the sale of the land to Alcantara valid?

Held:

Art 1079
Hermoso v CA
Hermoso de Leon inherited from his father a certain piece of land
by virtue of a deed of extra-judicial partition.
To arrange the documents for the properties of his parents,
Hermoso engaged the services of Atty Juan
After the death of Atty Juan, documents surfaced revealing that
the properties have been conveyed to Hermososbrothers and
sisters and, Juan and his sisters though Hermoso did not intend
such.
A deed of extra-judicial partition w/ quitclaim in favor of Rodolfo
de Leon surfaced with Hermosos signature in it(which was actually
forged)
Rodolfo sold the land to Aurora Alcantara. Hermoso questions the
sale.
RTC ruled that Hermosos claim on the land is barred by laches
since 18 years has passed since the land was sold. Italso ruled that
the deed of extra-judicial partition, being a notarial document, is
presumed authentic. CA reversed.
Issue:

No. There was no valid delivery as Rodolfo is not the rightful owner
of the land. A contract of sale is perfected by mereconsent, upon
meeting of the minds, on the offer and acceptance thereof based
on subject matter, price and terms of payment.At this stage,
sellers ownership of the land is not an element in the perfection of
the contract. However, this contractcreates an obligation on the
part of the seller to transfer ownership and to deliver the subject
matter of the contract.
It is during delivery that the law requires the seller to have the
right to transfer ownership of the thing sold.
It is throughdelivery or tradition that the buyer acquires the real
rights of ownership over the thing sold. At the time of
delivery,Rodolfo was not the owner of the land, thus the
consummation of the contract and the consequent transfer
would,then, depend on whether he subsequently acquired
ownership of the land in accordance with Art 1434 of the
CivilCode.But the extra-judicial partition was found to be forged
hence there was no valid transfer of ownershipRodolfo
neverbecame the owner of the land.Possession in good faith and
acquisition by virtue of prescription cannot be sustained if it is in
derogation of the rightsof the registered owner.

Calisang v Dizon

Sps Marcos v Heirs of Bangi

Partition is the separation, division and

assignment of a thing held in common among
those to whom it may belong.16 Every act which
is intended to put an end to indivision among coheirs and legatees or devisees is deemed to be a
partition.17 Partition may be inferred from

circumstances sufficiently strong to support the

presumption. Thus, after a long possession in
severalty, a deed of partition may be
presumed.18 Thus, in Hernandez v. Andal,19 the
Court emphasized that:
On general principle, independent and in spite of
the statute of frauds, courts of equity have
enforced oral partition when it has been
completely or partly performed.
Regardless of whether a parol partition or
agreement to partition is valid and enforceable at
law, equity will in proper cases, where the parol
partition has actually been consummated by the
taking of possession in severalty and the
exercise of ownership by the parties of the
respective portions set off to each, recognize and
enforce such parol partition and the rights of the
parties thereunder. Thus, it has been held or
stated in a number of cases involving an oral
partition under which the parties went into
possession, exercised acts of ownership, or
otherwise partly performed the partition
agreement, that equity will confirm such partition
and in a proper case decree title in accordance

with the possession in severalty.

xxxx

A parol partition may also be

sustained on the ground that the
parties thereto have acquiesced in
and ratified the partition by taking
possession in severalty, exercising
acts of ownership with respect
thereto, or otherwise recognizing
the existence of the partition.20
The evidence presented by the parties
indubitably show that, after the death of Alipio,
his heirs Eusebio, Espedita and Jose Bangi
had orally partitioned his estate, including the
subject property, which was assigned to Eusebio.
On this score, the CAs disquisition is instructive,
viz:
Even so, We are of the considered view that in
1943, when Eusebio Bangi executed the deed of
sale in favor of Isidro Bangi, Eusebio already had
acquired interest in the property covered by OCT
No. 22361 through succession from his father,

Alipio Bangi, who died in 1918.

Further, it appears that such interest extends to
the entire property embraced by OCT No. 22361.
This much can be gleaned from the testimony of
appellant Gloria Marcos herself, who said that
her father Eusebio owned the entire lot because
his siblings Espedita and Jose already had their
share from other properties.
That there was no written memorandum of the
partition among Alipio Bangis heirs cannot
detract from appellees cause.1wphi1 It has

been ruled that oral partition is effective when the

parties have consummated it by the taking of
possession in severalty and the exercise of
ownership of the respective portions set off to
each. Here, it is obvious that Eusebio took
possession of his share and exercised ownership
over it. Thus, the preponderant evidence points
to the validity of the sale executed between
Eusebio Bangi and Isidro Bangi on November 5,
1943 over the one-third portion of the property
covered by OCT No. 22361. x x x.21 (Emphasis
ours)