G.R. No.

L-22036 April 30, 1979

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR.

THE PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA,
TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and
JOVITA ESCOBAR DE FAUSTO, respondents-appellees.

D. Tañedo, Jr. for appellants.

J. Palanca, Sr. for appellee.

AQUINO, J.:

This case is about the efficaciousness or enforceability of a devise of ricelands located at

Guimba, Nueva Ecija, with a total area of around forty- four hectares That devise was
made in the will of the late Father Pascual Rigor, a native of Victoria Tarlac, in favor of
his nearest male relative who would study for the priesthood.

The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to
this Court from the decision of the Court of Appeals affirming the order of the probate
court declaring that the said devise was inoperative (Rigor vs. Parish Priest of the Roman
Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-R, August 1, 1963).

The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on
August 9, 1935, leaving a will executed on October 29, 1933 which was probated by the
Court of First Instance of Tarlac in its order of December 5, 1935. Named as devisees in
the will were the testators nearest relatives, namely, his three sisters: Florencia Rigor-
Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The testator gave a devise
to his cousin, Fortunato Gamalinda.

In addition, the will contained the following controversial bequest (paragraphing supplied
to facilitate comprehension of the testamentary provisions):

Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros

situados en el municipiooo de Guimba de la provinciaaa de NUEVA
ECIJA, cuyo num. de CERTIFICADO DE TRANSFERENCIA DE
TITULO SON; — Titulo Num. 6530, mide 16,249 m. cuadrados de
superficie Titulo Num. 6548, mide 242,998 m. cuadrados de superficie y
annual 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num.
6521, mide 119,251 m. cuadrados de superficie; a cualquier pariente mio
 varon mas cercano que estudie la carrera eclesiatica hasta ordenarse de
Presbiterado o sea Sacerdote; las condiciones de estate legado son;

(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados

objectos de este legado;

(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar
a gozar y administrar de este legado al principiar a curzar la Sagrada
Teologio, y ordenado de Sacerdote, hasta su muerte; pero que pierde el
legatario este derecho de administrar y gozar de este legado al dejar de
continuar sus estudios para ordenarse de Presbiterado (Sacerdote).

Que el legatario una vez Sacerdote ya estara obligado a celebrar cada año
VEINTE (20) Misas rezadas en sufragio de mi alma y de mis padres
difuntos, y si el actual legatario, quedase excomulgado, IPSO FACTO se
le despoja este legado, y la administracion de esto pasara a cargo del
actual Parroco y sus sucesores de la Iglecia Catolica de Victoria, Tarlac.

Y en intervalo de tiempo que no haya legatario acondicionado segun lo

arriba queda expresado, pasara la administracion de este legado a cargo
del actual Parroco Catolico y sus sucesores, de Victoria, Tarlac.

El Parroco administrador de estate legado, acumulara, anualmente todos

los productos que puede tener estate legado, ganando o sacando de los
productos anuales el CINCO (5) por ciento para su administracion, y los
derechos correspondientes de las VEINTE (20) Misas rezadas que debiera
el Parroco celebrar cada año, depositando todo lo restante de los productos
de estate legado, en un banco, a nombre de estate legado.

To implement the foregoing bequest, the administratix in 1940 submitted a project

containing the following item:

5. LEGACY OF THE CHURCH

That it be adjudicated in favor of the legacy purported to be given to the

nearest male relative who shall take the priesthood, and in the interim to
be administered by the actual Catholic Priest of the Roman Catholic
Church of Victoria, Tarlac, Philippines, or his successors, the real
properties hereinbelow indicated, to wit:

Total amount and value — 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition,
directed that after payment of the obligations of the estate (including the sum of
P3,132.26 due to the church of the Victoria parish) the administratrix should deliver to
the devisees their respective shares.

It may be noted that the administratrix and Judge Cruz did not bother to analyze the
meaning and implications of Father Rigor's bequest to his nearest male relative who
would study for the priesthood. Inasmuch as no nephew of the testator claimed the devise
and as the administratrix and the legal heirs believed that the parish priest of Victoria had
no right to administer the ricelands, the same were not delivered to that ecclesiastic. The
testate proceeding remained pending.

About thirteen years after the approval of the project of partition, or on February 19,
1954, the parish priest of Victoria filed in the pending testate proceeding a petition
praying for the appointment of a new administrator (succeeding the deceased
administration Florencia Rigor), who should deliver to the church the said ricelands, and
further praying that the possessors thereof be ordered to render an accounting of the
fruits. The probate court granted the petition. A new administrator was appointed. On
January 31, 1957 the parish priest filed another petition for the delivery of the ricelands to
the church as trustee.

The intestate heirs of Father Rigor countered with a petition dated March 25, 1957
praying that the bequest be d inoperative and that they be adjudged as the persons entitled
to the said ricelands since, as admitted by the parish priest of Victoria, "no nearest male
relative of" the testator "has ever studied for the priesthood" (pp. 25 and 35, Record on
Appeal). That petition was opposed by the parish priest of Victoria.

Finding that petition to be meritorious, the lower court, through Judge Bernabe de
Aquino, declared the bequest inoperative and adjudicated the ricelands to the testator's
legal heirs in his order of June 28, 1957. The parish priest filed two motions for
reconsideration.

Judge De Aquino granted the respond motion for reconsideration in his order of
December 10, 1957 on the ground that the testator had a grandnephew named Edgardo G.
Cunanan (the grandson of his first cousin) who was a seminarian in the San Jose
Seminary of the Jesuit Fathers in Quezon City. The administrator was directed to deliver
the ricelands to the parish priest of Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father
Rigor had created a testamentary trust for his nearest male relative who would take the
holy orders but that such trust could exist only for twenty years because to enforce it
beyond that period would violate "the rule against perpetuities. It ruled that since no
legatee claimed the ricelands within twenty years after the testator's death, the same
should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code and
article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court of Appeals erred in not finding
that the testator created a public charitable trust and in not liberally construing the
testamentary provisions so as to render the trust operative and to prevent intestacy.

As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative
because no one among the testator's nearest male relatives had studied for the priesthood
and not because the trust was a private charitable trust. According to the legal heirs, that
factual finding is binding on this Court. They point out that appellant priest's change of
theory cannot be countenanced in this appeal .

In this case, as in cases involving the law of contracts and statutory construction, where
the intention of the contracting parties or of the lawmaking body is to be ascertained, the
primary issue is the determination of the testator's intention which is the law of the case
(dicat testor et erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of
Appeals, L-28734, March 28, 1969, 27 SCRA 546).

The will of the testator is the first and principal law in the matter of testaments. When his
intention is clearly and precisely expressed, any interpretation must be in accord with the
plain and literal meaning of his words, except when it may certainly appear that his
intention was different from that literally expressed (In re Estate of Calderon, 26 Phil.
333).

The intent of the testator is the cardinal rule in the construction of wills." It is "the life
and soul of a will It is "the first greatest rule, the sovereign guide, the polestar, in giving
effect to a will". (See Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209,
223, 237-8.)

One canon in the interpretation of the testamentary provisions is that "the testator's
intention is to be ascertained from the words of the wilt taking into consideration the
circumstances under which it was made", but excluding the testator's oral declarations as
to his intention (Art. 789, Civil Code of the Philippines).

To ascertain Father Rigor's intention, it may be useful to make the following re-statement
of the provisions of his will.

1. that he bequeathed the ricelands to anyone of his nearest male relatives who would
pursue an ecclesiastical career until his ordination as a priest.

2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy and
administer the ricelands, and once ordained as a priest, he could continue enjoying and
administering the same up to the time of his death but the devisee would cease to enjoy
and administer the ricelands if he discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate every year
twenty masses with prayers for the repose of the souls of Father Rigor and his parents.

5. That if the devisee is excommunicated, he would be divested of the legacy and the
administration of the riceland would pass to the incumbent parish priest of Victoria and
his successors.

6. That during the interval of time that there is no qualified devisee as contemplated
above, the administration of the ricelands would be under the responsibility of the
incumbent parish priest of Victoria and his successors, and

7. That the parish priest-administrator of the ricelands would accumulate annually the
products thereof, obtaining or getting from the annual produce five percent thereof for his
administration and the fees corresponding to the twenty masses with prayers that the
parish priest would celebrate for each year, depositing the balance of the income of the
devise in the bank in the name of his bequest.

From the foregoing testamentary provisions, it may be deduced that the testator intended
to devise the ricelands to his nearest male relative who would become a priest, who was
forbidden to sell the ricelands, who would lose the devise if he discontinued his studies
for the priesthood, or having been ordained a priest, he was excommunicated, and who
would be obligated to say annually twenty masses with prayers for the repose of the souls
of the testator and his parents.

On the other hand, it is clear that the parish priest of Victoria would administer the
ricelands only in two situations: one, during the interval of time that no nearest male
relative of the testator was studying for the priesthood and two, in case the testator's
nephew became a priest and he was excommunicated.

What is not clear is the duration of "el intervalo de tiempo que no haya legatario
acondicionado", or how long after the testator's death would it be determined that he had
a nephew who would pursue an ecclesiastical vocation. It is that patent ambiguity that has
brought about the controversy between the parish priest of Victoria and the testator's legal
heirs.

Interwoven with that equivocal provision is the time when the nearest male relative who
would study for the priesthood should be determined. Did the testator contemplate only
his nearest male relative at the time of his death? Or did he have in mind any of his
nearest male relatives at anytime after his death?

We hold that the said bequest refers to the testator's nearest male relative living at the
time of his death and not to any indefinite time thereafter. "In order to be capacitated to
inherit, the heir, devisee or legatee must be living at the moment the succession opens,
except in case of representation, when it is proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To construe
them as referring to the testator's nearest male relative at anytime after his death would
render the provisions difficult to apply and create uncertainty as to the disposition of his
estate. That could not have been his intention.

In 1935, when the testator died, his nearest leagal heirs were his three sisters or second-
degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the
testator specified his nearest male relative, he must have had in mind his nephew or a son
of his sister, who would be his third-degree relative, or possibly a grandnephew. But
since he could not prognosticate the exact date of his death or state with certitude what
category of nearest male relative would be living at the time of his death, he could not
specify that his nearest male relative would be his nephew or grandnephews (the son of
his nephew or niece) and so he had to use the term "nearest male relative".

It is contended by the legal heirs that the said devise was in reality intended for Ramon
Quiambao, the testator's nephew and godchild, who was the son of his sister, Mrs.
Quiambao. To prove that contention, the legal heirs presented in the lower court the
affidavit of Beatriz Gamalinda, the maternal grandmother of Edgardo Cunanan, who
deposed that after Father Rigor's death her own son, Valentin Gamalinda, Jr., did not
claim the devise, although he was studying for the priesthood at the San Carlos Seminary,
because she (Beatriz) knew that Father Rigor had intended that devise for his nearest
male relative beloning to the Rigor family (pp. 105-114, Record on Appeal).

Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not
the one contemplated in Father Rigor's will and that Edgardo's father told her that he was
not consulted by the parish priest of Victoria before the latter filed his second motion for
reconsideration which was based on the ground that the testator's grandnephew, Edgardo,
was studying for the priesthood at the San Jose Seminary.

Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian

in 1961. For that reason, the legal heirs apprised the Court of Appeals that the probate
court's order adjudicating the ricelands to the parish priest of Victoria had no more leg to
stand on (p. 84, Appellant's brief).

Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the

testator's intention and which is hearsay, has no probative value. Our opinion that the said
bequest refers to the testator's nephew who was living at the time of his death, when his
succession was opened and the successional rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of the will.

Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie
la camera eclesiatica" would include indefinitely anyone of his nearest male relatives
born after his death, he could have so specified in his will He must have known that such
a broad provision would suspend for an unlimited period of time the efficaciousness of
his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya legatario
acondicionado"? The reasonable view is that he was referring to a situation whereby his
nephew living at the time of his death, who would like to become a priest, was still in
grade school or in high school or was not yet in the seminary. In that case, the parish
priest of Victoria would administer the ricelands before the nephew entered the seminary.
But the moment the testator's nephew entered the seminary, then he would be entitled to
enjoy and administer the ricelands and receive the fruits thereof. In that event, the
trusteeship would be terminated.

Following that interpretation of the will the inquiry would be whether at the time Father
Rigor died in 1935 he had a nephew who was studying for the priesthood or who had
manifested his desire to follow the ecclesiastical career. That query is categorically
answered in paragraph 4 of appellant priest's petitions of February 19, 1954 and January
31, 1957. He unequivocally alleged therein that "not male relative of the late (Father)
Pascual Rigor has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal).

Inasmuch as the testator was not survived by any nephew who became a priest, the
unavoidable conclusion is that the bequest in question was ineffectual or inoperative.
Therefore, the administration of the ricelands by the parish priest of Victoria, as
envisaged in the wilt was likewise inoperative.

The appellant in contending that a public charitable trust was constituted by the testator in
is favor assumes that he was a trustee or a substitute devisee That contention is untenable.
A reading of the testamentary provisions regarding the disputed bequest not support the
view that the parish priest of Victoria was a trustee or a substitute devisee in the event
that the testator was not survived by a nephew who became a priest.

It should be understood that the parish priest of Victoria could become a trustee only
when the testator's nephew living at the time of his death, who desired to become a priest,
had not yet entered the seminary or, having been ordained a priest, he was
excommunicated. Those two contingencies did not arise, and could not have arisen in this
case because no nephew of the testator manifested any intention to enter the seminary or
ever became a priest.

The Court of Appeals correctly ruled that this case is covered by article 888 of the old
Civil Code, now article 956, which provides that if "the bequest for any reason should be
inoperative, it shall be merged into the estate, except in cases of substitution and those in
which the right of accretion exists" ("el legado ... por qualquier causa, no tenga efecto se
refundira en la masa de la herencia, fuera de los casos de sustitucion y derecho de
acrecer").

This case is also covered by article 912(2) of the old Civil Code, now article 960 (2),
which provides that legal succession takes place when the will "does not dispose of all
that belongs to the testator." There being no substitution nor accretion as to the said
ricelands the same should be distributed among the testator's legal heirs. The effect is as
if the testator had made no disposition as to the said ricelands.

The Civil Code recognizes that a person may die partly testate and partly intestate, or that
there may be mixed succession. The old rule as to the indivisibility of the testator's win is
no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate
succession as to the property recovered by the said legacy (Macrohon Ong Ham vs.
Saavedra, 51 Phil. 267).

We find no merit in the appeal The Appellate Court's decision is affirmed. Costs against
the petitioner.

SO ORDERED

Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and Santos,
JJ., concur.

Abad Santos, J., took no part.

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 co-defendants. It likewise appears that Faustino Nebreda died in 1945
much prior to the effectivity of the new Civil Code. With this background, it is evident
that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the
time passed from the moment of his death to his only heir, his widow Maria Uson
(Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs
at the moment of the death of the ancestor as completely as if the ancestor had executed
and delivered to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa,
17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over
the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in
question because she expressly renounced to inherit any future property that her husband
may acquire and leave upon his death in the deed of separation they had entered into on
February 21, 1931, cannot be entertained for the simple reason that future inheritance
cannot be the subject of a contract nor can it be renounced (1 Manresa, 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.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador,
JJ., concur.
G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-

appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA,
MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of
Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of
Francisco de Borja, appellant. .

G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O.

VDA. DE DE BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.

G.R. No. L-28611 August 18, 1972

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late

Francisco de Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco,
defendant-appellant.

L-28040

Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.

Andres Matias for appellee Cayetano de Borja.

Sevilla & Aquino for appellant.

L-28568

Sevilla & Aquino for special administratrix-appellee.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

L-28611

Sevilla & Aquino for plaintiff-appellee.

Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

REYES, J.B.L., J.:p

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de
de Borja, special administratrix of the testate estate of Francisco de Borja,1 from the
approval of a compromise agreement by the Court of First Instance of Rizal, Branch I, in
its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de
Borja, Administrator".

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the
same compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in
its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana
O. Vda. de de Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of
the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the
Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise
agreement, as the separate and exclusive property of the late Francisco de Borja and not a
conjugal asset of the community with his first wife, Josefa Tangco, and that said hacienda
pertains exclusively to his testate estate, which is under administrator in Special
Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6
October 1940, filed a petition for the probate of her will which was docketed as Special
Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was
probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and
administrator: in 1952, their son, Jose de Borja, was appointed co-administrator. When
Francisco died, on 14 April 1954, Jose became the sole administrator of the testate estate
of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took unto
himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted
testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was
appointed special administratrix. The validity of Tasiana's marriage to Francisco was
questioned in said proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has
been plagued with several court suits and counter-suits; including the three cases at bar,
some eighteen (18) cases remain pending determination in the courts. The testate estate of
Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to
put an end to all these litigations, a compromise agreement was entered into on 12
October 1963,2 by and between "[T]he heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of
Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis
Panaguiton Jr." The terms and conditions of the compromise agreement are as follows:

AGREEMENT

THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage, namely, Jose
de Borja personally and as administrator of the Testate Estate of Josefa
Tangco,

AND

The heir and surviving spouse of Francisco de Borja by his second

marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty.
Luis Panaguiton Jr.

WITNESSETH

THAT it is the mutual desire of all the parties herein terminate and settle,
with finality, the various court litigations, controversies, claims,
counterclaims, etc., between them in connection with the administration,
settlement, partition, adjudication and distribution of the assets as well as
liabilities of the estates of Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja.

THAT with this end in view, the parties herein have agreed voluntarily
and without any reservations to enter into and execute this agreement
under the following terms and conditions:

1. That the parties agree to sell the Poblacion portion of the Jalajala
properties situated in Jalajala, Rizal, presently under administration in the
Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more
specifically described as follows:

Linda al Norte con el Rio Puwang que la separa de la

jurisdiccion del Municipio de Pililla de la Provincia de
Rizal, y con el pico del Monte Zambrano; al Oeste con
Laguna de Bay; por el Sur con los herederos de Marcelo de
Borja; y por el Este con los terrenos de la Familia
Maronilla

with a segregated area of approximately 1,313 hectares at the amount of

P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself to pay Tasiana
Ongsingco Vda. de de Borja the total amount of Eight Hundred Thousand
Pesos (P800,000) Philippine Currency, in cash, which represent P200,000
as his share in the payment and P600,000 as pro-rata shares of the heirs
Crisanto, Cayetano and Matilde, all surnamed de Borja and this shall be
considered as full and complete payment and settlement of her hereditary
share in the estate of the late Francisco de Borja as well as the estate of
Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-
Rizal, respectively, and to any properties bequeathed or devised in her
favor by the late Francisco de Borja by Last Will and Testament or by
Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for
consideration or otherwise. The funds for this payment shall be taken from
and shall depend upon the receipt of full payment of the proceeds of the
sale of Jalajala, "Poblacion."

3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of

that particular obligation incurred by the late Francisco de Borja in favor
of the Rehabilitation Finance Corporation, now Development Bank of the
Philippines, amounting to approximately P30,000.00 and also assumes
payment of her 1/5 share of the Estate and Inheritance taxes on the Estate
of the late Francisco de Borja or the sum of P3,500.00, more or less, which
shall be deducted by the buyer of Jalajala, "Poblacion" from the payment
to be made to Tasiana Ongsingco Vda. de Borja under paragraph 2 of this
Agreement and paid directly to the Development Bank of the Philippines
and the heirs-children of Francisco de Borja.

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay

directly to Tasiana Ongsingco Vda. de de Borja the balance of the
payment due her under paragraph 2 of this Agreement (approximately
P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de
Borja, corresponding certified checks/treasury warrants, who, in turn, will
issue the corresponding receipt to Jose de Borja.

5. In consideration of above payment to Tasiana Ongsingco Vda. de de

Borja, Jose de Borja personally and as administrator of the Testate Estate
of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for
themselves and for their heirs, successors, executors, administrators, and
assigns, hereby forever mutually renounce, withdraw, waive, remise,
release and discharge any and all manner of action or actions, cause or
causes of action, suits, debts, sum or sums of money, accounts, damages,
claims and demands whatsoever, in law or in equity, which they ever had,
or now have or may have against each other, more specifically Sp.
Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva
Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452-
CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with
 the Provincial Fiscal of Rizal, the intention being to completely, absolutely
and finally release each other, their heirs, successors, and assigns, from
any and all liability, arising wholly or partially, directly or indirectly, from
the administration, settlement, and distribution of the assets as well as
liabilities of the estates of Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de
Borja expressly and specifically renounce absolutely her rights as heir
over any hereditary share in the estate of Francisco de Borja.

6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment

under paragraph 4 hereof, shall deliver to the heir Jose de Borja all the
papers, titles and documents belonging to Francisco de Borja which are in
her possession and said heir Jose de Borja shall issue in turn the
corresponding receive thereof.

7. That this agreement shall take effect only upon the fulfillment of the
sale of the properties mentioned under paragraph 1 of this agreement and
upon receipt of the total and full payment of the proceeds of the sale of the
Jalajala property "Poblacion", otherwise, the non-fulfillment of the said
sale will render this instrument NULL AND VOID AND WITHOUT
EFFECT THEREAFTER.

IN WITNESS WHEREOF, the parties hereto have her unto set their hands
in the City of Manila, Philippines, the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12
October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866;
and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special
Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The
Rizal court approved the compromise agreement, but the Nueva Ecija court declared it
void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de Borja
appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-
28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case
No. L-28568) by the Court of First Instance of Nueva Ecija.

The genuineness and due execution of the compromised agreement of 12 October 1963 is
not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the
ground that: (1) the heirs cannot enter into such kind of agreement without first probating
the will of Francisco de Borja; (2) that the same involves a compromise on the validity of
the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it
were valid, it has ceased to have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the
Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74
Phil. 479, wherein the Court's majority held the view that the presentation of a will for
probate is mandatory and that the settlement and distribution of an estate on the basis of
intestacy when the decedent left a will, is against the law and public policy. It is likewise
pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised
Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's
estate by agreement between heirs, upon the facts that "(if) the decedent left no will and
no debts, and the heirs are all of age, or the minors are represented by their judicial and
legal representatives ..." The will of Francisco de Borja having been submitted to the
Nueva Ecija Court and still pending probate when the 1963 agreement was made, those
circumstances, it is argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de
Borja stresses that at the time it was entered into, on 12 October 1963, the governing
provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed
the extrajudicial settlement of the estate of a deceased person regardless of whether he
left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara
vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have already
divided the estate in accordance with a decedent's will, the probate of the will is a useless
ceremony; and if they have divided the estate in a different manner, the probate of the
will is worse than useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is
apparent from an examination of the terms of the agreement between Jose de Borja and
Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of
P800,000 payable to Tasiana Ongsingco —

shall be considered as full — complete payment — settlement of her

hereditary share in the estate of the late Francisco de Borja as well as the
estate of Josefa Tangco, ... and to any properties bequeathed or devised in
her favor by the late Francisco de Borja by Last Will and Testament or by
Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for
consideration or otherwise.

This provision evidences beyond doubt that the ruling in the Guevara case is not
applicable to the cases at bar. There was here no attempt to settle or distribute the estate
of Francisco de Borja among the heirs thereto before the probate of his will. The clear
object of the contract was merely the conveyance by Tasiana Ongsingco of any and all
her individual share and interest, actual or eventual in the estate of Francisco de Borja
and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee.
And as a hereditary share in a decedent's estate is transmitted or vested immediately from
the moment of the death of such causante or predecessor in interest (Civil Code of the
Philippines, Art. 777)3 there is no legal bar to a successor (with requisite contracting
capacity) disposing of her or his hereditary share immediately after such death, even if
the actual extent of such share is not determined until the subsequent liquidation of the
estate.4 Of course, the effect of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir. However, the aleatory character of the contract
does not affect the validity of the transaction; neither does the coetaneous agreement that
the numerous litigations between the parties (the approving order of the Rizal Court
enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and
should be dismissed, although such stipulation, as noted by the Rizal Court, gives the
contract the character of a compromise that the law favors, for obvious reasons, if only
because it serves to avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco
de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the
present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her
successional interest existed independent of Francisco de Borja's last will and testament
and would exist even if such will were not probated at all. Thus, the prerequisite of a
previous probate of the will, as established in the Guevara and analogous cases, can not
apply to the case of Tasiana Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and between "Jose de Borja
personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand,
and on the other, "the heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was
binding on both in their individual capacities, upon the perfection of the contract, even
without previous authority of the Court to enter into the same. The only difference
between an extrajudicial compromise and one that is submitted and approved by the
Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil
Code is explicit on the point:

8. Art. 2037. A compromise has upon the parties the effect and authority
of res judicata; but there shall be no execution except in compliance with
a judicial compromise.

It is argued by Tasiana Ongsingco that while the agreement Annex A

expressed no definite period for its performance, the same was intended to
have a resolutory period of 60 days for its effectiveness. In support of such
contention, it is averred that such a limit was expressly stipulated in an
agreement in similar terms entered into by said Ongsingco with the
brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and
Cayetano, all surnamed de Borja, except that the consideration was fixed
at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and
which contained the following clause:

III. That this agreement shall take effect only upon the consummation of
the sale of the property mentioned herein and upon receipt of the total and
full payment of the proceeds of the sale by the herein owner heirs-children
of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all
surnamed de Borja; Provided that if no sale of the said property mentioned
herein is consummated, or the non-receipt of the purchase price thereof by
 the said owners within the period of sixty (60) days from the date hereof,
this agreement will become null and void and of no further effect.

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a
party to this particular contract (Annex 1), and that the same appears not to have been
finalized, since it bears no date, the day being left blank "this — day of October 1963";
and while signed by the parties, it was not notarized, although plainly intended to be so
done, since it carries a proposed notarial ratification clause. Furthermore, the compromise
contract with Jose de Borja (Annex A), provides in its par. 2 heretofore transcribed that
of the total consideration of P800, 000 to be paid to Ongsingco, P600,000 represent the
"prorata share of the heirs Crisanto, Cayetano and Matilde all surnamed de Borja" which
corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is
proof that the duly notarized contract entered into wit Jose de Borja under date 12
October 1963 (Annex A), was designed to absorb and supersede the separate unformalize
agreement with the other three Borja heirs. Hence, the 60 days resolutory term in the
contract with the latter (Annex 1) not being repeated in Annex A, can not apply to the
formal compromise with Jose de Borja. It is moreover manifest that the stipulation that
the sale of the Hacienda de Jalajala was to be made within sixty days from the date of the
agreement with Jose de Borja's co-heirs (Annex 1) was plainly omitted in Annex A as
improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold
to raise the P800,000 to be paid to Ongsingco for her share formed part of the estate of
Francisco de Borja and could not be sold until authorized by the Probate Court. The
Court of First Instance of Rizal so understood it, and in approving the compromise it
fixed a term of 120 days counted from the finality of the order now under appeal, for the
carrying out by the parties for the terms of the contract.

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to
approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was
not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she
was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No.
832 of the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since
what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late
husband, not the estate itself; and as already shown, that eventual share she owned from
the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As
owner of her undivided hereditary share, Tasiana could dispose of it in favor of
whomsoever she chose. Such alienation is expressly recognized and provided for by
article 1088 of the present Civil Code:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they
were notified in writing of the sale of the vendor.
If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a
coheir could not be forbidden.

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is
void because it amounts to a compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the very opening paragraph of the
agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de
Borja", which is in itself definite admission of her civil status. There is nothing in the text
of the agreement that would show that this recognition of Ongsingco's status as the
surviving spouse of Francisco de Borja was only made in consideration of the cession of
her hereditary rights.

It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of

Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832
(Amended Record on Appeal in L-28568, page 157), that the compromise agreement of
13 October 1963 (Annex "A") had been abandoned, as shown by the fact that, after its
execution, the Court of First Instance of Nueva Ecija, in its order of 21 September 1964,
had declared that "no amicable settlement had been arrived at by the parties", and that
Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed amicable
settlement "had failed to materialize".

It is difficult to believe, however, that the amicable settlement referred to in the order and
motion above-mentioned was the compromise agreement of 13 October 1963, which
already had been formally signed and executed by the parties and duly notarized. What
the record discloses is that some time after its formalization, Ongsingco had unilaterally
attempted to back out from the compromise agreement, pleading various reasons restated
in the opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840,
page 23): that the same was invalid because of the lapse of the allegedly intended
resolutory period of 60 days and because the contract was not preceded by the probate of
Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that
Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of
Francisco de Borja, etc., all of which objections have been already discussed. It was
natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new
settlement or novatory agreement before seeking judicial sanction and enforcement of
Annex "A", since the latter step might ultimately entail a longer delay in attaining final
remedy. That the attempt to reach another settlement failed is apparent from the letter of
Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant
Ongsingco in G.R. No. 28040; and it is more than probable that the order of 21
September 1964 and the motion of 17 June 1964 referred to the failure of the parties'
quest for a more satisfactory compromise. But the inability to reach a novatory accord
can not invalidate the original compromise (Annex "A") and justifies the act of Jose de
Borja in finally seeking a court order for its approval and enforcement from the Court of
First Instance of Rizal, which, as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance with law, and,
therefore, its order should be upheld, while the contrary resolution of the Court of First
Instance of Nueva Ecija should be, and is, reversed.

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has
affected her unfavorably, in that while the purchasing power of the agreed price of
P800,000 has diminished, the value of the Jalajala property has increased. But the fact is
that her delay in receiving the payment of the agreed price for her hereditary interest was
primarily due to her attempts to nullify the agreement (Annex "A") she had formally
entered into with the advice of her counsel, Attorney Panaguiton. And as to the
devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561,
30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a
revaluation with every subsequent fluctuation in the values of currency and properties of
the estate", is particularly opposite in the present case.

Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala
(Poblacion), concededly acquired by Francisco de Borja during his marriage to his first
wife, Josefa Tangco, is the husband's private property (as contended by his second
spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial)
partnership with Josefa Tangco. The Court of First Instance of Rizal (Judge Herminio
Mariano, presiding) declared that there was adequate evidence to overcome the
presumption in favor of its conjugal character established by Article 160 of the Civil
Code.

We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja
has become moot and academic, in view of the conclusion reached by this Court in the
two preceding cases (G.R. No. L-28568), upholding as valid the cession of Tasiana
Ongsingco's eventual share in the estate of her late husband, Francisco de Borja, for the
sum of P800,000 with the accompanying reciprocal quit-claims between the parties. But
as the question may affect the rights of possible creditors and legatees, its resolution is
still imperative.

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally
acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their
title thereto was duly registered in their names as co-owners in Land Registration Case
No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil.
465). Subsequently, in 1931, the Hacienda was partitioned among the co-owners: the
Punta section went to Marcelo de Borja; the Bagombong section to Bernardo de Borja,
and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De
Borja vs. De Borja 101 Phil. 911, 932).

The lot allotted to Francisco was described as —

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E.

Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay;
 containing an area of 13,488,870 sq. m. more or less, assessed at
P297,410. (Record on Appeal, pages 7 and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate

of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil
Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco
(Francisco de Borja's first wife), seeking to have the Hacienda above described declared
exclusive private property of Francisco, while in his answer defendant (now appellant)
Jose de Borja claimed that it was conjugal property of his parents (Francisco de Borja and
Josefa Tangco), conformably to the presumption established by Article 160 of the
Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the effect
that:

Art. 160. All property of the marriage is presumed to belong to the

conjugal partnership, unless it be proved that it pertains exclusively to the
husband or to the wife.

Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and
exemplary, as well as for attorney's fees.

After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the
plaintiff had adduced sufficient evidence to rebut the presumption, and declared the
Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late Francisco
de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its
possession. Defendant Jose de Borja then appealed to this Court.

The evidence reveals, and the appealed order admits, that the character of the Hacienda in
question as owned by the conjugal partnership De Borja-Tangco was solemnly admitted
by the late Francisco de Borja no less than two times: first, in the Reamended Inventory
that, as executor of the estate of his deceased wife Josefa Tangco, he filed in the Special
Proceedings No. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit
"2"); and again, in the Reamended Accounting of the same date, also filed in the
proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja,
herself, as oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated
7 September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal
Properties of the Spouses Francisco de Borja and Josefa Tangco". And once more,
Tasiana Ongsingco, as administratrix of the Estate of Francisco de Borja, in Special
Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted therein in
December, 1955, an inventory wherein she listed the Jalajala Hacienda under the heading
"Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa Tangco,
which are in the possession of the Administrator of the Testate Estate of the Deceased
Josefa Tangco in Special Proceedings No. 7866 of the Court of First Instance of Rizal"
(Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they are plain admissions
against interest made by both Francisco de Borja and the Administratrix of his estate, in
the course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the
legal presumption in favor of the conjugal community, the Court below declared that the
Hacienda de Jalajala (Poblacion) was not conjugal property, but the private exclusive
property of the late Francisco de Borja. It did so on the strength of the following
evidences: (a) the sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F")
that —

He tomado possession del pedazo de terreno ya delimitado (equivalente a

1/4 parte, 337 hectareas) adjunto a mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal).

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire
Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount P25,100
was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon
receipt of a subsequent demand from the provincial treasurer for realty taxes the sum of
P17,000, Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also
to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo issue a check for
P17,000.00 to pay the back taxes and said that the amount would represent Francisco's
contribution in the purchase of the Hacienda. The witness further testified that —

Marcelo de Borja said that that money was entrusted to him by Francisco
de Borja when he was still a bachelor and which he derived from his
business transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15)
(Emphasis supplied)

The Court below, reasoning that not only Francisco's sworn statement overweighed the
admissions in the inventories relied upon by defendant-appellant Jose de Borja since
probate courts can not finally determine questions of ownership of inventoried property,
but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his
share of the original Hacienda with his private funds, for which reason that share can not
be regarded as conjugal partnership property, but as exclusive property of the buyer,
pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of
the Philippines.

The following shall be the exclusive property of each spouse:

xxx xxx xxx

(4) That which is purchased with exclusive money of the wife or of the
husband.

We find the conclusions of the lower court to be untenable. In the first place, witness
Gregorio de Borja's testimony as to the source of the money paid by Francisco for his
share was plain hearsay, hence inadmissible and of no probative value, since he was
merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of
ascertaining the truth of the statement, since both Marcelo and Francisco de Borja were
already dead when Gregorio testified. In addition, the statement itself is improbable,
since there was no need or occasion for Marcelo de Borja to explain to Gregorio how and
when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A ring of
artificiality is clearly discernible in this portion of Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page
14) does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de
Jalajala, Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits 3
and 4) disclose that there were two real properties in Jalajala owned by Francisco de
Borja, one of 72.038 sq. m., assessed at P44,600, and a much bigger one of 1,357.260.70
sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which of these lands
did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's
characterization of the land as "mi terreno personal y exclusivo" is plainly self-serving,
and not admissible in the absence of cross examination.

It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3",
"4" and "7") are not conclusive on the conjugal character of the property in question; but
as already noted, they are clear admissions against the pecuniary interest of the
declarants, Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as such
of much greater probative weight than the self-serving statement of Francisco (Exhibit
"F"). Plainly, the legal presumption in favor of the conjugal character of the Hacienda de
Jalajala (Poblacion) now in dispute has not been rebutted but actually confirmed by
proof. Hence, the appealed order should be reversed and the Hacienda de Jalajala
(Poblacion) declared property of the conjugal partnership of Francisco de Borja and
Josefa Tangco.

No error having been assigned against the ruling of the lower court that claims for
damages should be ventilated in the corresponding special proceedings for the settlement
of the estates of the deceased, the same requires no pro announcement from this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of
Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-
28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio

and Esguerra, JJ., concur.

Fernando, J., took no part.

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.

Teehankee (Chairman), Makasiar, Esguerra and Muñoz Palma, JJ., concur.

G.R. No. 173292 September 1, 2010

MEMORACION Z. CRUZ, represented by EDGARDO Z. CRUZ, Petitioner,

vs.
OSWALDO Z. CRUZ, Respondent.

DECISION

CARPIO, J.:

The Case

This is a petition for review1 of the Court of Appeals’ (CA) Decision2 dated 20 December
2005 and Resolution dated 21 June 2006 in CA-G.R. CV No. 80355. The CA affirmed
with modification the Order3 dated 2 June 1997 of the Regional Trial Court of the
National Capital Judicial Region, Branch 30, Manila (RTC).

The Antecedent Facts

The undisputed facts, as summarized by the Court of Appeals, are as follows:

On October 18, 1993, Memoracion Z. Cruz filed with the Regional Trial Court in Manila
a Complaint against her son, defendant-appellee Oswaldo Z. Cruz, for "Annulment of
Sale, Reconveyance and Damages."

Memoracion claimed that during her union with her common-law husband (deceased)
Architect Guido M. Cruz, she acquired a parcel of land located at Tabora corner Limay
Streets, Bo. Obrero, Tondo Manila; that the said lot was registered in her name under
TCT No. 63467 at the Register of Deeds of Manila; that sometime in July 1992, she
discovered that the title to the said property was transferred by appellee and the latter’s
wife in their names in August 1991 under TCT No. 0-199377 by virtue of a Deed of Sale
dated February 12, 1973; that the said deed was executed through fraud, forgery,
misrepresentation and simulation, hence, null and void; that she, with the help of her
husband’s relatives, asked appellee to settle the problem; that despite repeated pleas and
demands, appellee refused to reconvey to her the said property; that she filed a complaint
against appellee before the office of the Barangay having jurisdiction over the subject
property; and that since the matter was unsettled, the barangay x x x issued x x x a
certification to file [an] action in court, now the subject of controversy.

After Memoracion x x x finished presenting her evidence in chief, she died on October
30, 1996. Through a Manifestation, Memoracion’s counsel, Atty. Roberto T. Neri,
notified the trial court on January 13, 1997 of the fact of such death, evidenced by a
certificate thereof.
For his part, appellee filed a Motion to Dismiss on the grounds that (1) the plaintiff’s
reconveyance action is a personal action which does not survive a party’s death, pursuant
to Section 21, Rule 3 of the Revised Rules of Court, and (2) to allow the case to continue
would result in legal absurdity whereby one heir is representing the defendant [and is a]
co-plaintiff in this case.

On June 2, 1997, the trial court issued the appealed Order in a disposition that reads:

"Wherefore, in view of the foregoing, this case is ordered dismissed without prejudice to
the prosecution thereof in the proper estate proceedings."

On October 17, 1997, Memoracion’s son-heir, Edgardo Z. Cruz, manifested to the trial
court that he is retaining the services of Atty. Neri for the plaintiff. Simultaneously, Atty.
Neri filed a Motion for Reconsideration of the June 2, 1997 Order. However, the said
motion was subsequently denied by Acting Presiding Judge Cielito N. Mindaro-Grulla
[on October 31, 2000].

Thereafter, Edgardo Cruz, as an heir of Memoracion Cruz, filed a notice of appeal in

behalf of the deceased plaintiff, signed by Atty. Neri, but the appeal was dismissed by
Judge Mindaro-Grulla, [stating that] the proper remedy being certiorari under Rule 65 of
the Rules of Court. On appellant’s motion for reconsideration, Judge Lucia Pena
Purugganan granted the same, stating that the remedy under the circumstances is ordinary
appeal.4

The Court of Appeals’ Ruling

Petitioner Memoracion Z. Cruz, represented by Edgardo Z. Cruz, filed with the Court of
Appeals a Petition for Review under Rule 45 of the 1997 Revised Rules of Civil
Procedure. On 20 December 2005, the CA rendered judgment affirming with
modification the RTC decision. We quote the dispositive portion of the CA’s decision
below.

WHEREFORE, the appealed Order is AFFIRMED, with MODIFICATION. The trial

court’s directive as to the prosecution of the action in the proper estate proceedings is
DELETED.

SO ORDERED.5

Petitioner’s Motion for Reconsideration was denied by the CA in its Resolution of 21

June 2006.6

Hence, this appeal.

The Issues
The issues for resolution in this case are:

1. Whether the Court of Appeals erred in ruling that Memoracion Z. Cruz’s

Petition for Annulment of Deed of Sale, Reconveyance and Damages is a purely
personal action which did not survive her death; and

2. Whether the Court of Appeals erred in affirming with modification the RTC
Order dismissing the Petition for Annulment of Deed of Sale, Reconveyance and
Damages.

The Court’s Ruling

We find the appeal meritorious.

The Petition for Annulment of Sale, Reconveyance

and Damages survived the death of petitioner

The criterion for determining whether an action survives the death of a petitioner was
elucidated in Bonilla v. Barcena,7 to wit:

The question as to whether an action survives or not depends on the nature of the action
and the damage sued for. In the causes of action which survive, the wrong complained
[of] 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.8

If the case affects primarily and principally property and property rights, then it survives
the death of the plaintiff or petitioner. In Sumaljag v. Literato,9 we held that a Petition for
Declaration of Nullity of Deed of Sale of Real Property is one relating to property and
property rights, and therefore, survives the death of the petitioner. Accordingly, the
instant case for annulment of sale of real property merits survival despite the death of
petitioner Memoracion Z. Cruz.

The CA erred in affirming RTC’s dismissal of the

Petition for Annulment of Deed of Sale,
Reconveyance and Damages

When a party dies during the pendency of a case, Section 16, Rule 3 of the 1997 Revised
Rules of Civil Procedure necessarily applies, viz:

Sec. 16. Death of party; duty of counsel. - Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be the duty of his counsel to inform the
court within thirty (30) days after such death of the fact thereof, and to give the name and
address of his legal representative or representatives. Failure of counsel to comply with
this duty shall be a ground for disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and
be substituted within a period of thirty (30) days from notice.

If no legal representative is named by the counsel for the deceased party, or if the one so
named shall fail to appear within the specified period, the court may order the opposing
party, within a specified time, to procure the appointment of an executor or administrator
for the estate of the deceased and the latter shall immediately appear for and on behalf of
the deceased. The court charges in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs.

The foregoing section is a revision of Section 17, Rule 3 of the old Rules of Court:

SEC. 17. Death of party. - 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 to be substituted for the deceased, within a period of thirty (30) days, or
within such time as may be granted. If the legal representative fails to appear within said
time, the court may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court, and the
representative shall immediately appear for and on behalf of the interest of the deceased.
The court charges involved in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs. The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for the minor heirs.

If the action survives despite death of a party, it is the duty of the deceased’s counsel to
inform the court of such death, and to give the names and addresses of the deceased’s
legal representatives. The deceased may be substituted by his heirs in the pending action.
As explained in Bonilla:

x x x 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. 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. 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.
When [plaintiff], therefore, died[,] her claim or right to the parcels of land x x x 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.10

If no legal representative is named by the counsel of the deceased, or the legal

representative fails to appear within a specified period, it is the duty of the court where
the case is pending to order the opposing party to procure the appointment of an executor
or administrator for the estate of the deceased. The reason for this rule is to protect all
concerned who may be affected by the intervening death, particularly the deceased and
his estate.111avvphi1

In the instant case, petitioner (plaintiff) Memoracion Z. Cruz died on 30 October 1996.
Her counsel, Atty. Roberto T. Neri, notified the trial court of such death on 13 January
1997, through a Manifestation stating thus:

COMES NOW the undersigned counsel and to this Honorable Court respectfully gives
notice that the plaintiff, Memoracion Z. Cruz, died on October 30, 1996, in Manila as
shown by a Certificate of Death, a certified true copy of which is hereto attached as
Annex "A" hereof.

The legal representative of the deceased plaintiff is her son EDGARDO CRUZ whose
address is at No. 3231-E Tabora St., Bo. Obrero, Tondo, Manila.

x x x x12

On 24 January 1997, respondent (defendant) Oswaldo Z. Cruz moved to dismiss the case
alleging that it did not survive Memoracion’s death. The RTC granted the motion to
dismiss in the assailed Order dated 2 June 1997.

We rule that it was error for the RTC to dismiss the case. As mentioned earlier, the
petition for annulment of deed of sale involves property and property rights, and hence,
survives the death of petitioner Memoracion. The RTC was informed, albeit belatedly,13
of the death of Memoracion, and was supplied with the name and address of her legal
representative, Edgardo Cruz. What the RTC could have done was to require Edgardo
Cruz to appear in court and substitute Memoracion as party to the pending case, pursuant
to Section 16, Rule 3 of the 1997 Revised Rules of Civil Procedure, and established
jurisprudence.

We note that on 17 October 1997, Edgardo Cruz filed with the RTC a Manifestation,
stating that he is retaining the services of Atty. Roberto T. Neri. We quote:14

UNDERSIGNED HEIR of the late Memoracion Z. Cruz respectfully manifests that he

is retaining the services of ATTY. ROBERTO T. NERI as counsel for the plaintiff.
(Sgd.) EDGARDO Z. CRUZ
Plaintiff

Consistent with our ruling in Heirs of Haberer v. Court of Appeals,15 we consider such
Manifestation, signed by Memoracion’s heir, Edgardo Cruz, and retaining Atty. Neri’s
services as counsel, a formal substitution of deceased Memoracion by her heir, Edgardo
Cruz. It also needs mention that Oswaldo Cruz, although also an heir of Memoracion,
should be excluded as a legal representative in the case for being an adverse party
therein.16

WHEREFORE, we GRANT the petition. We REVERSE the Court of Appeals’

Decision dated 20 December 2005 and Resolution dated 21 June 2006 in CA-G.R. CV
No. 80355. We REMAND this case to the Regional Trial Court of the National Capital
Judicial Region, Branch 30, Manila, for further proceedings.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice
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 re-raffling; and

3. G.R. No. 65995, granting the petition to restrain the respondents from further
acting on any and all incidents in Special proceedings No. 916-11 because of the
affirmation of the decision of the Intermediate Appellate Court in G.R. No.
63818.

the trial court may now terminate and close Special Proceedings No. 916-R, subject to the
submission of an inventory of the real properties of the estate and an accounting of the
call and bank deposits of the petitioner, as co-administrator of the estate, if he has not vet
done so, as required by this Court in its Resolution dated June 15, 1983. This must be
effected with all deliberate speed.

G.R. No. 63818

On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a
motion for inhibition in the Court of First Instance of Cebu, Branch 11, presided over by
Judge Francisco P. Burgos to inhibit the judge from further acting in Special Proceedings
No. 916-R. 'The movants alleged, among others, the following:

xxx xxx xxx

6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the
production of the certificates of title and to deposit the same with the Branch
Clerk of Court, presumably for the ready inspection of interested buyers. Said
motion was granted by the Hon. Court in its order of October 2, 1978 which,
however, became the subject of various motions for reconsideration from heirs-
distributees who contended that as owners they cannot be deprived of their titles
for the flimsy reasons advanced by Atty, Antigua. In view of the motions for
reconsideration, Atty Antigua ultimately withdraw his motions for production of
titles.

7. The incident concerning the production of titles triggered another incident

involving Atty. Raul H. Sesbreno who was then the counsel of herein movants
Petra O. Borromeo and Amelinda B. Talam In connection with said incident,
Atty. Sesbreno filed a pleading which the tion. presiding, Judge Considered direct
contempt because among others, Atty. Sesbreno insinuated that the Hon.
Presiding Judge stands to receive "fat commission" from the sale of the entire
property. Indeed, Atty. Sesbreno was seriously in danger of being declared in
contempt of court with the dim prospect of suspension from the practice of his
profession. But obviously to extricate himself from the prospect of contempt and
suspension. Atty. Sesbreno chose rapproachment and ultimately joined forces
with Atty. Antigua, et al., who, together, continued to harass administrator

xxx xxx xxx

9. The herein movants are informed and so they allege, that a brother of the Hon.
Presiding Judge is married to a sister of Atty. Domingo L. Antigua.

10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are
agitating for the sale of the entire estate or to buy out the individual heirs, on the
one hand, and the herein movants, on the other, who are not willing to sell their
distributive shares under the terms and conditions presently proposed. In this tug
of war, a pattern of harassment has become apparent against the herein movants,
especially Jose Cuenco Borromeo. Among the harassments employed by Atty
Antigua et al. are the pending motions for the removal of administrator Jose
Cuenco Borromeo, the subpoena duces tecum issued to the bank which seeks to
invade into the privacy of the personal account of Jose Cuenco Borromeo, and the
other matters mentioned in paragraph 8 hereof. More harassment motions are
expected until the herein movants shall finally yield to the proposed sale. In such
a situation, the herein movants beg for an entirely independent and impartial
judge to pass upon the merits of said incidents.

11. Should the Hon. Presiding Judge continue to sit and take cognizance of this
proceeding, including the incidents above-mentioned, he is liable to be
misunderstood as being biased in favor of Atty Antigua, et al. and prejudiced
against the herein movants. Incidents which may create this impression need not
be enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for
reconsideration having been denied, the private respondents filed a petition for certiorari
and/or prohibition with preliminary injunction before the Intermediate Appellate Court.

In the appellate court, the private respondents alleged, among others, the following:

xxx xxx xxx

16. With all due respect, petitioners regret the necessity of having to state herein
that respondent Hon. Francisco P. Burgos has shown undue interest in pursing the
sale initiated by Atty. Domingo L. Antigua, et al. Significantly, a brother of
respondent Hon. Francisco P. Burgos is married to a sister of Atty. Domingo L.
Antigua.

17. Evidence the proposed sale of the entire properties of the estate cannot be
legally done without the conformity of the heirs-distributees because the
certificates of title are already registered in their names Hence, in pursuit of the
agitation to sell, respondent Hon. Francisco P. Burgos urged the heirs-distributees
to sell the entire property based on the rationale that proceeds thereof deposited in
the bank will earn interest more than the present income of the so called estate.
Most of the heirs-distributees, however. have been petitioner timid to say their
piece. Only the 4/9 group of heirs led by Jose Cuenco Borromeo have had the
courage to stand up and refuse the proposal to sell clearly favored by respondent
Hon. Francisco P. Burgos.

xxx xxx xxx

20. Petitioners will refrain from discussing herein the merits of the shotgun
motion of Atty. Domingo L. Antigua as well as other incidents now pending in
the court below which smack of harassment against the herein petitioners. For,
regardless of the merits of said incidents, petitioners respectfully contend that it is
highly improper for respondent Hon. Francisco P. Burgos to continue to preside
over Sp. Proc. No. 916-R by reason of the following circumstances:

(a) He has shown undue interest in the sale of the properties as initiated by
Atty. Domingo L. Antigua whose sister is married to a brother of
respondent.

(b) The proposed sale cannot be legally done without the conformity of the
heirs-distributees, and petitioners have openly refused the sale, to the great
disappointment of respondent.

(c) The shot gun motion of Atty. Antigua and similar incidents are clearly
intended to harass and embarrass administrator Jose Cuenco Borromeo in
order to pressure him into acceding to the proposed sale.
 (d) Respondent has shown bias and prejudice against petitioners by failing
to resolve the claim for attorney's fees filed by Jose Cuenco Borromeo and
the late Crispin Borromeo. Similar claims by the other lawyers were
resolved by respondent after petitioners refused the proposed sale. (pp. 41-
43, Rollo)

On March 1, 1983, the appellate court rendered its decision granting the petition for
certiorari and/or prohibition and disqualifying Judge Francisco P. Burgos from taking
further cognizance of Special Proceedings No. 916-R. The court also ordered the
transmission of the records of the case to the Executive Judge of the Regional Trial Court
of Region VII for re-raffling.

A motion for reconsideration of the decision was denied by the appellate court on April
11, 1983. Hence, the present petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the case of Intestate Estate of Vito Borromeo and orders the
remand of the case to the Executive Judge of the Regional Trial Court of Cebu for re-
raffling.

The principal issue in this case has become moot and academic because Judge Francisco
P. Burgos decided to retire from the Regional Trial Court of Cebu sometime before the
latest reorganization of the judiciary. However, we decide the petition on its merits for
the guidance of the judge to whom this case will be reassigned and others concerned.

The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They
contend that Judge Burgos has benn shown unusual interest in the proposed sale of the
entire estate for P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim that
this disinterest is shown by the judge's order of March 2, 1979 assessing the property of
the estate at P15,000,000.00. They add that he only ordered the administrator to sell so
much of the properties of the estate to pay the attorney's fees of the lawyers-claimants. To
them, the inhibition of Judge Burgos would have been unreasonable because his orders
against the failure of Jose Cuenco Borromeo, as administrator, to give an accounting and
inventory of the estate were all affirmed by the appellate court. They claim that the
respondent court, should also have taken judicial notice of the resolution of this Court
directing the said judge to "expedite the settlement and adjudication of the case" in G.R.
No. 54232. And finally, they state that the disqualification of judge Burgos would delay
further the closing of the administration proceeding as he is the only judge who is
conversant with the 47 volumes of the records of the case.

Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered that
Judge Burgos appointed Ricardo V. Reyes as co-administrator of the estate on October
11, 1972, yet Borromeo was singled out to make an accounting of what t he was
supposed to have received as rentals for the land upon which the Juliana Trade Center is
erected, from January, 1977 to February 1982, inclusive, without mentioning the
withholding tax for the Bureau of Internal Revenue. In order to bolster the agitation to
sell as proposed by Domingo L. Antigua, Judge Burgos invited Antonio Barredo, Jr., to a
series of conferences from February 26 to 28, 1979. During the conferences, Atty.
Antonio Barredo, Jr., offered to buy the shares of the heirs-distributees presumably to
cover up the projected sale initiated by Atty. Antigua.

On March 2, 1979, or two days after the conferences, a motion was filed by petitioner
Domingo L. Antigua praying that Jose Cuenco Borromeo be required to file an inventory
when he has already filed one to account for cash, a report on which the administrators
had already rendered: and to appear and be examined under oath in a proceeding
conducted by Judge Burgos lt was also prayed that subpoena duces tecum be issued for
the appearance of the Manager of the Consolidated Bank and Trust Co., bringing all the
bank records in the name of Jose Cuenco Borromeo jointly with his wife as well as the
appearance of heirs-distributees Amelinda Borromeo Talam and another heir distributee
Vitaliana Borromeo. Simultaneously with the filing of the motion of Domingo Antigua,
Atty. Raul H. Sesbreno filed a request for the issuance of subpoena duces tecum to the
Manager of Consolidated Bank and 'Trust Co., Inc.; Register of Deeds of Cebu City;
Register of Deeds for the Province of Cebu and another subpoena duces tecum to Atty.
Jose Cuenco Borromeo.

On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the
Managert of the bank, the Register of deeds for the City of Cebu, the Register of Deeds
for the Province, of Cebu. and to Jose Cuenco Borromeo.

On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the
heirs of Marcial Borromeo who had a common cause with Atty Barredo, Jr., joined
petitioner Domingo L. Antigua by filing a motion for relief of the administrator.

On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoena
duces tecum to private respondent Jose Cuenco Borromeo to bring and produce all the
owners" copies of the titles in the court presided order by Judge Burgos.

Consequently. the Branch Clerk of Court issued a subpoena duces tecum commanding
Atty. Jose Cuenco Borromeo to bring and produce the titles in court.

All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979, before
the date of the hearing, Judge Burgos issued an order denying the private respondents'
motion for reconsideration and the motion to quash the subpoena.1avvphi1

It was further argued by the private respondents that if ,judge Francisco P. Burgos is not
inhibited or disqualified from trying Sp. Proc. No. 916-R, there would be a miscarriage of
justice Because for the past twelve years, he had not done anything towards the closure of
the estate proceedings except to sell the properties of the heirs-distributees as initiated by
petitioner Domingo L. Antigua at 6.7 million pesos while the Intestate Court had already
evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for inhibition, more
specifically, the insistence of the trial judge to sell the entire estate at P6,700,000.00,
where 4/9 group of heirs objected, cannot easily be ignored. Suspicion of partiality on the
part of a trial judge must be avoided at all costs. In the case of Bautista v. Rebeuno (81
SCRA 535), this Court stated:

... The Judge must maintain and preserve the trust and faith of the parties litigants.
He must hold himself above reproach and suspicion. At the very first sign of lack
of faith and trust to his actions, whether well grounded or not, the Judge has no
other alternative but inhibit himself from the case. A judge may not be legally
Prohibited from sitting in a litigation, but when circumstances appear that will
induce doubt to his honest actuations and probity in favor or of either partly or
incite such state of mind, he should conduct a careful self-examination. He should
exercise his discretion in a way that the people's faith in the Courts of Justice is
not impaired, "The better course for the Judge under such circumstances is to
disqualify himself "That way he avoids being misunderstood, his reputation for
probity and objectivity is preserve ed. what is more important, the Ideal of
impartial administration of justice is lived up to.

In this case, the fervent distrust of the private respondents is based on sound reasons. As
Earlier stated, however, the petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the Intestate Estate of Vito Borromeo case and ordering the
remand of the case to the Executive Judge of the Regional Trial Court for re-raffling
should be DENIED for the decision is not only valid but the issue itself has become moot
and academic.

G.R. No. 65995

The petitioners seek to restrain the respondents from further acting on any and all
incidents in Special Proceedings No. 916-R during the pendency of this petition and No.
63818. They also pray that all acts of the respondents related to the said special
proceedings after March 1, 1983 when the respondent Judge was disqualified by the
appellate court be declared null and void and without force and effect whatsoever.

The petitioners state that the respondent Judge has set for hearing all incidents in Special
Proceedings No. 916-R, including the reversion from the heirs-distributees to the estate,
of the distributed properties already titled in their names as early as 1970,
notwithstanding the pending inhibition case elevated before this Court which is docketed
as G.R. No. 63818.

The petitioners further argue that the present status of Special Proceeding No. 916-R
requires only the appraisal of the attorney's fees of the lawyers-claimants who were
individually hired by their respective heirs-clients, so their attorney's fees should be
legally charged against their respective clients and not against the estate.
On the other hand, the respondents maintain that the petition is a dilatory one and barred
by res 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 re-raffle the case shall be
implemented:

(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking to
restrain Judge Francisco P. Burgos from further acting in G.R. No. 63818 is
MOOT and ACADEMIC:
 (5) In G.R, No, 62895, the trial court is hereby ordered to speedily terminate the
close Special Proceedings No. 916-R, subject to the submission of an inventory of
the real properties of the estate and an accounting of the cash and bank deposits
by the petitioner-administrator of the estate as required by this Court in its
Resolution dated June 15, 1983; and

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

SO ORDERED.