[ G. R. No.

L-4963, January 29, 1953 ]
This is an action for the 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

in a gesture of pity or compassion. provided said new right does not prejudice or impair any vested or acquired right. The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot. but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. it shall be effective at once. while her deceased husband was lying in state. without costs. old Civil Code). Wherefore.for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation. even though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation. 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. old Civil Code). partakes of the nature of a donation of real property. if any. 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. impairment of the vested right of Maria Uson over the lands in dispute. it results that the alleged assignment or donation has no valid effect. be asserted to the. 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. . this much can be said." As already stated in the early part of this decision. the decision appealed from is affirmed. said article provides that "if a right should be declared for the first time in this Code. apart from the fact that this claim is disputed. As regards the claim that Maria Uson. of the same origin. we are of the opinion that said assignment. Thus. therefore. Inasmuch as this essential formality has not been followed.

approving the sale of certain real property in favor of Francisco Dee. This error is. and Domingo Lao. because of his failure to file his answer. It is our ruling that motions of this nature are addressed to the sound discretion of the court.[ G. in her individual capacity. . He filed a motion to lift the order of the court. Appellants now assign this as error. 1949.R. Here there is no such showing. FRANCISCO DEE AND MARIA LAO. in her capacity as special administratrix of the estate of the late Albina de los Santos. They attempted to show that. prior to the expiration of the reglementary period. The order of the probate court is sought to be annulled on the following grounds: the court overlooked the fact that a special administrator has no power to sell real property. and for the annulment of the sale itself. 1949. and that Francisco Dee has a meritorious defense against the complaint. or that Ignacia Lao executed the deed of sale on the alleged misrepresentation that Francisco Dee was a Filipino citizen. Francisco Dee filed a lengthy motion to dismiss. she having ceased to be such administratrix by order of the probate court dated July 6. and. the court approved the tale in the belief that Ignacia Lao had given her consent to the sale. The motion was heard and argued. with costs against the plaintiffs. and that. but we will only discuss some which we believe are decisive of the present appeal. It is true that instead of filing a responsive pleading. which directly challenged the right of the plaintiffs to institute the action. therefore. L-3890. also an heir. This is now assigned as error by appellants. The lower court granted the motions to dismiss and ordered the dismissal of the complaint. Dee filed a motion to dismiss. thereafter. was due to mistake or excusable negligence which ordinary prudence could not have guarded against. Both Francisco Dee and Maria Lao filed separately a motion to dismiss. 1952 ] IGNACIA LAO. One of the grounds on which the lower court predicated its order of dismissal is that Ignacia Lao has no legal capacity to sue as special administratrix of the estate of Albina de los Santos. as well as heir of said deceased. without merit. IN HER CAPACITY AS CO-SPECIAL ADMINISTRATRIX OF THE ESTATE OF ALBINA DE LOS SANTOS. filed a complaint for the annulment of an order of the Court of First Instance of Manila dated January 28. also as heir of the deceased. when in fact she was Induced to sign the deed of sale by Maria Lao and her attorney through misrepresentation that the deed of sale was a mere petition for the approval of the proposed sale. From this order the plaintiffs appealed to this Court. on motion of the plaintiffs. Section 1. The complaint was filed against Francisco Dee as vendee and Maria Lao. DEFENDANTS-APPELLEES. Ignacia Lao. during that period of time. the court lifted the order. which accepted her resignation filed almost two years ago. attaching thereto affidavits of merits to prove that his failure to answer. of the Rules of Court. allowing Francisco Dee to file a responsive pleading. a co-special administratrix of the estate. but this may be allowed under Rule 8. It appears that. the order of the court should be left undisturbed. January 23. if one has good grounds to do so. The first error assigned refers to the lifting of the order of default entered against defendant Francisco Dee. or put in a responsive pleading within the reglementary period. and unless abuse of discretion Is shown. the court did not know that the vendee Francisco Dee was not a Filipino citizen. No. PLAINTIFFSAPPELLANTS. AND DOMINGO LAO. rendered in the testate proceedings of the deceased. Francisco Dee was declared in default. Appellants have assigned seven errors as committed by the lower court. VS. or file a motion to extend the time to plead to the complaint within the reglementary period. The dismissal of this case proves that Dee's move was justified. a case for ejectment between the same parties was pending in the municipal court wherein many incidents had arisen which heavily occupied and absorbed the time and attention of Dee's counsel.

Maria Lao and Ignacia Lao. For an enlightened discussion of this error there is need to make a brief narration of the background which led the court to conclude that the cause of action based on the alleged extrinsic fraud is already barred by a prior judgment. The authority was to sell the property for P250. the sale was approved. And although she subsequently appealed from the order of the court accepting her resignation. they have no right to do unless such property has been assigned to them as their share In the Inheritance. only the two administratrices of the estate can Impugn the validity of the sale. Again we find no error in this respect. Comments on the Rules of Court. The heirs. has become moot. bars the filing of an action by an heir to recover the title or possession of lands belonging to the estate until there is an order of the probate court assigning said lands to such heir. with the express conformity of the other heirs Antonio and Alexandra Lao. Vol.The fact that Ignacia Lao tendered her resignation as administratrix on August 6. and we doubt if this can be done. The record shows that on May 28. 1949. which refers to the conclusion of the lower court that the cause of action of the complaint based on the alleged ground of fraud employed on Ignacia Lao is already barred by a prior judgment for the reason that the same extrinsic fraud had already been passed upon by the probate court and the Supreme Court. the administratrices of the estate of Albina de los Santos. is not disputed. a case which comes under the exception of the rule that "when the executor or administrator is unwilling or fails or refuses to act. 1947 and that her resignation was approved by the court on July 6. 1949. On January 28. when she filed this action. takes possession of the property left by the decedent for the purpose of paying debts. according to the court. under the rule.000. have no reason to complain. 6 [1942] p. in which event the heirs may act in his place" (Pascual v. 1949. there oust be first a partition of the estate.000. of the Rules of Court. This was opposed by the heir Domingo Lao. for the court would not sanction the undoing of what it has been accomplished through its own express authority. informed the court that the property was sold to Francisco Dee for P260. Here. therefore. no residue may be settled for distribution among the heirs and devisees. No. Not having the character of administratrix on August 4.. 1948. The reasons for this rule are aptly stated by former Chief Justice Moran as follows: "An executor or administrator who assumes the trust. This error. In any event. . In other words. Consequently. a co-administratrix.000. By order of January 28. relieving her as administratrix. Off. The sale was made by express authority of the court on the strength of the petition of the heirs themselves. and delivery of the latter to the heir. therefore. Section 8. This is not. Another ground on which the lower court based its order of dismissal is that Ignacia Lao and Domingo Lao were suing as heirs of the deceased Albina de los Santos to recover the title and possession of a property which formed part of the estate which. Pascual. or devisees have no cause of action against the executor or administrator for recovery of the property left by the deceased. Let us now come to the crucial error assigned by appellants. The sale was made by the two administratrices of the estate.000. Including the now appellant Ignacia Lao. The terms of the sale were more than what the heirs expected. this did not cure her incapacity because the appeal was later dismissed by the Supreme Court. 1948. the court issued an order authorizing the sale for not less than P250. On July 22. Domingo Lao filed a motion for reconsideration. before distribution is made or before any residue is known. p. and prayed that the sale be approved. This opposition notwithstanding. therefore. This motion was also denied. Maria Lao. Rule 88. she had no legal capacity to sue. and yet Francisco Dee paid P260. 416)." (II Moran. This motion was denied. I. 342). This is also assigned as error. 1949. Gaz. Precisely the property was sold as a preliminary step to partition. the heirs. there has been so far no partition of the estate. From these orders no appeal was interposed. filed a motion to sell the property in question. While his debts are undetermined and unpaid. Domingo Lao filed another motion for reconsideration.

Domingo Lao filed an urgent petition for revocation of the approval of the deed of sale. To this motion Francisco Dee filed an opposition. The court apparently did not believe the charges of fraud and must have found them to be mere alibi to harass the other heirs and the vendee and frustrate the sale. inasmuch as both the probate court and the Supreme Court found flimsy the grounds on which the motions were based. 1949. This is reflected in the following passages of the order of the probate court: "The order of January 29. the court again denied the motion for reconsideration. but by his co-heirs Maria Lao and Alejandra Lao. the court issued an omnibus order denying the motion for lack of merit. and on July 20. some of which are the same as those on which the present action is based. Domingo Lao filed another motion for reconsideration disputing the validity of the sale on the ground that a special administrator does not have power to sell real property belonging to the estate. A motion for reconsideration was filed by petitioner. Antonio Lao and Ignacia Lao filed a motion in the probate proceedings for the annulment of the same order based on the same ground of extrinsic fraud. But again they failed to convince the court. Domingo Lao attached to his motion for reconsideration no less than six exhibits in an attempt to substantiate the fraud allegedly employed on Ignacia Lao. Domingo Lao filed a motion for reconsideration alleging for the first time that Ignacia Lao was the victim of fraud and misrepresentation by her co-administratrix Maria Lao and her attorney. Francisco Dee. 1949. As may be seen. and was again opposed by Francisco Dee. as regards his Filipino citizenship. On May 3.On January 31. and the other an affidavit of another heir Antonio Lao. to which the vendee objected. the motion was opposed not only by the vendee. Domingo Lao made no less than six attempts to obtain the revocation of said order in the probate court. 1949. one of them being an affidavit of Ignacia Lao herself. On March 10. 1949. The ground now invoiced there have been taken into consideration by the Supreme Court in summarily dismissing the petition. He also claimed that Ignacia Lao was likewise the victim of fraud on the part of the vendee. petitioner Domingo Lao moved for a reconsideration of the order of January 29. On February 23. 1949. aid on July 2. This time they made a serious attempt to prove their charges of fraud. This time. 1949 but no mention of fraud was made In his motion although the alleged fraud already existed . 1949. but all proved futile. Domingo Lao filed another motion for reconsideration through a new counsel. By resolution of June 23. As may be noticed. 1949. he was Joined by his co-heirs Antonio Lao and Ignacia Lao. 1949. 1949. after his several attempts to secure the same purpose in the Supreme Court had failed. the Supreme Court found the claim not meritorious. the court denied the petition as entirely without merit. the order of the court approving the deed of sale in favor of Francisco Dee was issued on January 28. This is the order which was assailed by Domingo Lao in several motions he filed in the probate court and in a petition for certiorari he filed in the Supreme Court. 1949 was assailed in a petition for certiorari (L-2891) filed In the Supreme Oourt in March or April. Prior to the filing of the petition for certiorari. It should be particularly noted that when the alleged fraud was raised for the first time before the Supreme Court. On February 28. alleging varied grounds. the court denied the motion stating that "no further petition or motion with respect to this matter will be entertained". the Supreme Court dismissed the petition for lack of merit. 1949. this motion was also denied. On May 20. 1949. Domingo Lao. The Supreme Court denied the motion for reconsideration. as well as for the annulment of the deed of sale. On June 27. 1949. Domingo Lao filed a petition for certiorari in the Supreme Court praying for the annulment of the order of approval of the sale in favor of Francisco Dee. On April 18. No appeal was interposed to these orders of the probate court. It should also be mentioned that when Domingo Lao made another attempt to annul the order approving the sale in the probate court. as shown by the fact that it denied the motion with the admonition that "no further petition or motion with respect to this matter will be entertained". 1949. and made similar attempts to obtain the same relief in the Supreme Court. 1949. and attached to their motion for annulment the same exhibits they submitted to the Supreme Court. But in spite of those exhibits. On March 26.

therefore. 1949. That order. we do not deem it necessary to discuss the other errors assigned by the appellants.at that time (February 28. Wherefore. has a decisive effect. 1949 and can no longer be entertained now especially after it has been invoked in the petition for certiorari". with costs against the appellants. and the same was opposed by the same parties who now stand as appellees. appears that the questions now involved in this case had been passed upon once by the Supreme Court and once by the probate court and were both decided against the pretense of the herein appellants. That order bars the present action. there being identity of parties and of subject matter. or abuse of discretion. The decision was adverse to them. While it may be contended that the resolution of the Supreme Court denying the annulment of the order approving the sale on the ground of extrinsic fraud does not constitute res judicata because it has no jurisdiction to pass on that question. . It. who were Joined by their co-heir Antonio Lao. it cannot be denied that the omnibus order of the probate court dated July 2. approving the sale. The question was raised by the same appellants herein. the decision appealed from is hereby affirmed. the issue therein being merely excess of Jurisdiction. The movants presented evidence to substantiate their charges of fraud. Having reached the foregoing conclusion. 1949. has now the effect of res judicata. The order became final for lack of appeal. The alleged fraud already existed at the time the motion for reconsideration was filed by Domingo Lao on February 28. therefore. The grounds now invoked have been considered by the Supreme Court in denying the petition. date of the filing of the motion for reconsideration) as maybe inferred from the dates mentioned in Exhibits "E" and "F" of the motion now under consideration. 1949. The probate court had jurisdiction to act on that matter. The denial of the petition for certiorari is conclusive upon the validity of the order of this Court of January 29. however.

H. Q-293) for failure to state a cause of action.'s of having guaranteed. renewal.against the principal upon his default.—Any and all sums of money so paid by the company shall bear interest at the rate of 12% per annum which interest.—The undersigned. Philippines ' Currency. agree to pay the COMPANY the sum of _________________(P_____________) pesos. and expenses of whatsoever kind and nature which the company shall or may. Interest on amount paid by the Company. and shall be exigible immediately upon the occurrence of such default. No. each subscribed by a distinct principal and by the deceased K. and to pay." (Rec. all contained the following stipulations: "Premiums. if not paid. jointly and severally. substitution or alteration thereof made at the instance of the undersigned or any of them or any order executed on behalf of the undersigned or any of them.) . App. from an order of the Court of First Instance of Rizal.. reimburse and make good to the company. a surety solidary guarantor) in all of them. or indemnity agreements. The twenty counterbonds. the same interests as the capital and the total sum thereof. including 15% of the amount involved in the litigation or other matters growing out of or connected therewith for counsel or attorney's fees. 1956 ] ESTATE OP K. CLAIMANT AND APPELLANT. DECEASED. charges. or to exhaust the property of the principal. a primary one. in consideration of the Luzon Surety Co. Inc. at any time sustain or incur in consequence of having become surety upon this bond or any extension. Hemady (Special roceeding No.—As consideration for this suretyship. this ___________ or any renewal or substitution thereof is in effect. stamps. LUZON SURETY CO. The Luzon Surety Co. whether it shall have paid out such sums of money or any part thereof or not. its successors and assigns. agree at all times to indemnify the company and keep it indemnified and hold and save it harmless from and against any and all damages. shall be paid to the Company as soon as the Company shall have become liable therefore. of whatsoever kind and nature. the capital and interest. VS. taxes. pp.. on account of the undersigned or any of them. H. the undersigned jointly and severally. November 28. had filed a claim against the Estate based on twenty different indemnity agreements. waiving for this purpose any other venue. HBMADY. will be accummulated and added to the capital quarterly order to earn. H. 98-102. coats. Appeal by Luzon Surety Co.[ G.—It shall not be necessary for the Company to bring suit . penalties. Waiver. but the liability hereunder of the undersigned indemnitor shall be jointly and severally.R. or become liable to pay. but in no case less than P25. Hemady. Our Liability Hereunder. the various principals in favor of different creditors.—It is hereby agreed upon by and between the undersigned that any question which may arise between them by reason of this document and which has to be submitted for decision to Courts of Justice shall be brought before the Court of competent jurisdiction in the City of Manila. dismissing its claim against the Estate of K. all sums and amount of money which it or its representatives shall pay or cause to be paid. presided by Judge Hermogenes Caluag. L-8437. or counter bonds. losses.. Our right to be notified of the acceptance and approval of this indemnity agreement is hereby likewise waived. It is hereby further agreed that in case of extension or renewal of this ___________we equally bind ourselves for the payment thereof under the same terms and conditions as above mentioned without the necessity of executing another indemnity agreement for the purpose and that we hereby equally waive our right to be notified of any renewal or extension of this____________ which may be granted under this indemnity agreement. in advance as premium there of for every _______________ months or fractions thereof. INC. Indemnity. the same as that of the principal.

his liability as a guarantor terminated. the lower court. the reasoning of the court below ran as follows: "The administratrix further contends that upon the death of Hemady. 9 Phil. prayed for allowance. thereby confirming Article 1311 already qouted.. was the fact that in the printed form of the indemnity agreement there is a paragraph entitled 'Security by way of first mortgage. since they were not liabilities incurred after the execution of the counter-bonds. dismissed the claims of Luzon Surety Co." In Mojica vs. pp. It should be noted that a new requirement has been added for a person to qualify as a guarantor.—The inheritance includes all the property. H. as a contingent claim. honesty and integrity of the now deceased K." Taking up the latter point first. 407—408). and (2) that "whatever losses may occur after Hemady's death. and therefore. with 12 per cent interest thereon Before answer was filed. Fernandez. except in the case where the rights and obligations arising from the contract are not transmissible by their nature. that is: integrity. this Supreme Court ruled: . Upon the death of Hemady." (Rec. may occur after Hemady's death. integrity is something purely personal and is not transmissible. of a person are transmitted through his death to another or others either by his will or by operation of law. We find this reasoning untenable. Hemady to comply with this requirement of giving security by way of firat mortgage. As correctly pointed out by the Administratrix. because upon his death he ceased to be guarantor. Another clear and strong indication that the surety company has exclusively relied on the personality. Hemady. 403. Whatever loss therefore. 776. Articles 774 and 776 of the New Civil Code (and Articles 659 and 661 of the preceding one) expressely so provide. the claim cannot be considered contingent. and further asked for judgment for the unpaid premiums and documentary stamps affixed to the bonds. as well as under the Civil Code of 1889 (Article 1257). . the rule is that:"Contracts take effect only as between the parties. character.. "Art. the principle remains intact that these heirs succeed not only to the rights of the deceased but also to his obligations.The Luzon Surety Co. rights and obligations to the extent of the value of the inheritance. 774. by order of September 23. are not chargeable to his estate because upon his death he ceased to be a guarantor. This Court believes that there is merit in this contention and finds support in Article 2046 of the new Civil Code.are not chargeable to his estate." "Art. on two grounds: (1) that the premiums due and cost of documentary stamps were not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady). their assigns and heirs. in the absence of a showing that a loss or damage was suffered. his integrity was not transmitted to his estate or successors.. since it is the one more far reaching in effects. App. of the value of the twenty bonds it had executed in consideration of the counterbonds. The security company has not demanded from K. rights and obligations of a person which are not extinguished by his death." While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him. or by stipulation or by provision of law.—Succession is a mode of acquisition by virtue of which the property. and upon motion of the administratrix of Hemady's estate. which was expressly waived and renounced by the security company. In the supporting papers of the claim presented by Luzon Surety Company. H. no real property was mentioned in the list of properties mortgaged which appears at the back of the indemnity agreement. 1953. Under the present Civil Code (Article 1311).

51 Off. Mientras nada se diga en contrario impera el principio de la transmision. 91 Phil. y para evitarld. H. sobre ellos recaen los efectos de los vinculos juridicos creados por sus antecesores. is contracted intuitu personae. como elemento natural a toda relacion juridical salvo las personalisimas. Siendo estos los continuadores de la personalidad del causante. this intransmissibility should not be easily implied. and to the Luzon Surety Co. p. i. es menester el pacto expreso.—Lo general es la transmisibilidad de darechos y obligaciones. si asi se quiere. Dolor.. so long as the money was paid to it. in accordance with that principle. the obligation has evolved into a relation from patrimony to patrimony. but must be expressly established. the general rule is that a party's contractual rights and obligations are transmissible to the successors. 2 Phil. clearly inferable from the provisions of the contract itself. Hemady when it accepted the latter as surety in the counterbonds? Nothing but the reimbursement of the moneys that the Luzon Surety Co. The transition is marked by the disappearance of the imprisonment for debt. Austria. "The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure. la intransmisibilidad. porque si no." (See also Galasinao vs. as observed by Victorio Polacco. Por su esencia. by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and can not be regarded as third parties with respect to a contract to which the deceased was a party. (No. The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). Asi. with the persons occupying only a representative position. para la no transmision. 265). has characterized the history of these institutions? From the Roman concept of a relation from person to person. 6) p. 1. and. or at the very least. The reason is that whatever payment is thus made from the estate is ultimately a payment by the heirs and distributees. y a ejercer presion sobre los sucesores de esa persona.. lo convenido ehtre partes trasciende a sus herederos. Of the three exceptions fixed by Article 1311. Being exceptional and contrary to the general rule. This reimbursement is a payment of a sum of money. Under our law. in consideration of its performance by a specific person and by no other. they take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights. barring those rare cases where the obligation is strictly personal. might have to disburse on account of the obligations of the principal debtors. it was indifferent that the reimbursement should be made by Hemady himself or by some one else in his behalf. the heirs of a deceased person cannot be held to be "third persons" in relation to any contracts touching the real estate of their decedent which comes in to their hands by right of inheritance. el derecho y la obligacion tienden a ir mas alia de las personas que les dieron vida. and the text of the agreements sued upon nowhere indicate that they are non-transferable.e. touching the estate of the deceased (Barrios vs. es indispensable convention terminante en tal sentido. the nature of the obligation of the surety or guarantor does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal inducement for the contract. cuando . 2874 and de Guzman vs. Gaz.. expect of K. Salak. resulting from an obligation to give. is intransmissibility by stipulation of the parties. therefore. 44).. "(b) Intransmisibilidad por pacto. The rule is a consequence of the progressive "depersonalization" of patrimonial rights and duties that. The second exception of Article 1311. What did the creditor Luzon Surety Co. le excepcion. since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive."Under the Civil Code the heirs.

43 Phil. as is the case in legal support (Article 300). his eventual liability thereunder necessarily passed upon his death to his heirs. capacity to bind himself. his failure to do so. the supervening incapacity of the guarantor would not operate to exonerate him of the eventual liability he has contracted. The provision makes reference to those cases where the law expresses that the rights or obligations are extinguished by death. The third exception to the transmissibility of obligations under Article 1311 exists when they are "not transmissible by operation of law". It is self-evident that once the contract has become perfected and binding. 541-542) (Italics supplied. or has .—If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent. The conT tracts. The foregoing concept is confirmed by the next Article 2057. the creditor may demand another who has all the qualifications required in the preceding article. he may waive it if he chooses. which is a quality mentioned in the article alongside the capacity. did not require bondsman Hemady to execute a mortgage indicates nothing more than the company's faith and confidence in the financial stability of the surety. and hold the guarantor to his bargain. The case is excepted where the creditor has required and stipulated that a specified person should be guarantor. Rule 87 (2 Moran. usufruct (Article 603). not his duty. Gaskell & Co. nor by the stipulations of the contracts themselves. that the law requires these qualities to be present only at the time of the perfection of the contract of guaranty. 2056. 814). the articles of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is extinguished upon the death of the guarantor or the surety. Hemady in favor of Luzon Surety Co. that the Luzon Surety Co." From this article it should be immediately apparent that the supervening dishonesty of the guarantor (that is to say. but not that his obligation was strictly personal. parental authority (Article 327). contracts for a piece of work (Article 1726).. By contract. . is no sign that he intended his bargain to terminate upon his death. and sufficient property to answer for the obligation. vs. It will be noted. partnership (Article 1830 and agency (Article 1919). which he guarantees. Tomo XX.) Because under the law (Article 1311). The contracts of suretyship entered into by K. When he does this. p. 2057. But until the surety has contributed something to the payment of the debt.. Tan Sit. Similarly. therefore. the disappearance of his integrity after he has become bound) does not terminate the contract but merely entitles the creditor to demand a replacement of the guarantor. se impone una eetipulacion limitativa expresamente de la transmisibilidad o de cuyos tirminos claramente se deduzca la concresion a del concreto a las mismas personas que lo otorgon. not being rendered intransmissible due to the nature of the undertaking. Hence Article. to the effect that "one who is obliged to furnish a guarantor must present a person who possesses integrity. "The most common example of the continent claim is that which arises when a person is bound as surety or guarantor for a principal who is insolvent or dead. and if that be true of his capacity to bind himself. it is unnecessary for him to expressly stipulate to that effect. nor by provision of law. a person who enters into a contract is deemed to have contracted for himself and hid heirs and assigns. that runs as follows: "ART. however. hence. Under the ordinary contract of suretyship the surety has no claim whatever against his principal until he himself pays something by way of satisfaction upon the obligation which is secured. Oodigo Civil. so linked to his individual ity that the guaranty automatically terminates upon his death. 1952 ed. p. 437. 2057 of the present Civil Code is incompatible with the trial court's stand that the requirement of integrity in the guarantor or surety makes the latter's undertaking strictly personal. there instantly arises in favor of the surety the right to compel the principal to exonerate the surety. it should also be true of his integrity.no se quiera esto. H. 810. But the step remains optional in the creditor: it is his right." (Scaevola. give rise to contingent claims provable against his estate under section 5. The lower court sought to infer such a limitation from Art.

the Luzon Surety Co. Gibson vs. What the Luzon Surety Co. Costs against the Administratrix-Appellee.].. not principal debtor. [Tenn. 10 Yarg.. 134. Pulliam. . and the records are ordered remanded to the court of origin. Ernst vs.)" For defendant administratrix it is averred that the above doctrine refers to a case where the surety files claims against the estate of the principal debtor. The foregoing ruling is of course without prejudice to the remedies of the administratrix against the principal debtors under Articles 2071 and 2067 of the New Civil Code. Maxey vs. 519. and that in such event.. 16 Pla. since Hemady is a solidary co-debtor of his principals. Wherefore. It becomes unnecessary now to discuss the estate's liability for premiums and stamp taxes. there is absolutely no reason why it could not file such a claim against the estate of Hemady. the order appealed from is reversed. 119.performed the secured obligation in whole or in part. Nou. and it is urged that . and its dismissal was erroneous.. since. 531 Reeves vs. the latter does not even enjoy the benefit of exhaustion of the assets of the principal debtor. [Tenn. 63 Wis. 553. The argument evinces a superficial view of the relations between parties. as guarantor. the Luzon Surety Co. he has no right of action against anybody—no claim that could be reduced to judgment. 15 Pla. in view of the existing solidarity.J. So ordered.. could file a contingent claim against the estate of the principal debtors if the latter should die. 7 Baxt. had the right to file against the estate a contingent claim for reimbursement.the rule does not apply to the case before us. with instructions to proceed in accordance with law. Vann. may claim from the estate of a principal debtor it may equally claim from the estate of Hemady. Carter. (May vs. the Luzon Surety's claim did state a cause of action. because irrespective of the solution to this question. Mithell. Our conclusion is that the solidary guarantor's liability is not extinguished by his death. If under the Gaskell ruling. where the late Hemady was a surety.

700. PLAINTIFF AND APPELLANT.[ G. that she needed money for the support of her children.) The above provision and comment make it clear that when Catalina Navarro Vda.the other hand." (5 Manresa. 317. "2nd. the surviving spouse Catalina Navarro Vda. the sole question for determination is the validity of the sale to Esperanza M. J. de Winstanley sold the entire parcel of land to the spouses Maria Canoy and Roberto Canoy. commending on article 657 of the Civil Code of Spain.—That on January 17.the plaintiff because it was due to no other cause than his own opposition." In a slightly different language. this article is incorporated in the new Civil Code as article 777. one-half of it already belonged to the seller's children. No.—That on May 24. IBARLE. the pertinent parts of which are thus summarized in the appealed decision: "1st. VS. The case was submitted for decision upon an agreed statement of facts. de Winstanley sold the entire parcel to the Canoy spouses. 1947." As stated by the trial Judge. Winstantley and Catalina Navarro were husband and wife. 1946. de Winstanley. 2391 of the Registry of Deeds of the Province of Cebu. Article 657 of the old Civil Code provides: "The rights to the succession of a person are transmitted from the moment of his death. 1946 leaving as heir the surviving spouse and some minor children. February 26. "4th. of the right of the plaintiff and/or the Canoy spouses to bring such action against Catalina Navarro Vda. Manresa. On.—That the above mentioned property was a conjugal property. by the same vendor to the plaintiff's grantors. along with the other half. 1948 surviving spouse Catalina Navarro Vda. Po. M. Ebarle. still the non-registration would not avail. DEFENDANT AND APPELLEE. defendant in the instant case. 1953 ] BIENVENIDO A. the former having died on June 6. made in said decision. the sale to the defendant having been made by authority of the competent court was undeniably legal and effective. L-5064. the last purchaser. Judgment was against the plaintiff. "5th. "3rd. . it follows that the first sale was null and void in so far as it included the children's share. The fact that it has not been recorded is of no consequence. which portion belongs to the children of the above named spouses. R. says: "The moment of death is the determining factor when the heirs acquire a definite right to the inheritance. he left a parcel of land described under Transfer Certificate of title No. "6th. This question in turn depends upon the validity of the prior sale to Maria Canoy and Roberto Canoy. PO. whether such right be pure or contingent. Winstanley. one undivided half of a parcel of land which previously had been sold.—That Leonard J. It is immaterial whether a short or long period of time lapses between the death of the predecessor and the entry into possession of the property of the inheritance because the right is always deemed to be retroactive from the moment of death. in consideration of Pl. This action was commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to the defendant. alleging among other things. No formal or judicial declaration being needed to confirm the children's title. Po. de Winstanley as may be appropriate for such damages as they may have incurred by reason of the voiding of the sale in their favor. The decision will be affirmed subject to the reservation. ESPERANZA. If registration were necessary. the spouses Maria Canoy and Roberto Canoy sold the same parcel of land to the plaintiff in this case named Bienvenido A.—That the two deeds of sale referred to above were not registered and have never been registered up to date. after her appointment as guardian of her children by this court (Special Proceeding No.—That on April 15. 212-R) sold one-half of the land mentioned above to Esperanza M. "7th.—That upon the death of L.

or instrument whatever unquestionably executed by Francisco Osorio y Reyes. recognized son of Francisco Osorio y Reyes and ordered that the defendant spouses recognize plaintiff as a natural son of Francisco Osorio y Reyes. deceased. will. and as entitled to share in his father's estate. An appeal by bill of exceptions. from which relations the boy Francisco Abdon Osorio y Garcia was born. DEFENDANTS AND APPELLANTS. the proper bill of exceptions having been filed. and in special defense alleged that Francisco Osorio y Reyes during his lifetime did not perform any act tending to show his intention to recognize plaintiff. and to the enjoyment of such other rights as are inherent in his said status of natural. furthermore. This motion was overruled and. with the costs against plaintiff. There is no question of investigating plaintiff's paternity. After the hearing and the introduction of evidence by both parties. therefore. SOLEDAD OSORIO AND VICENTE FERNANDEZ. 1914. the judgment aforementioned was rendered. had the latter recognized plaintiff as his natural son. This case deals with the claim of the minor Francisco Osorio y Garcia to be recognized as a natural son of Francisco Osorio y Reyes. for which reason the latter was included as defendant.R. counsel for Francisco Osorio y Garcia filed a written complaint in the Court of First Instance of Cavite. in which the Court of First Instance of Cavite held that plaintiff. and that said Francisco Osorio y Reyes left at his death real and personal property. with the costs against defendants. as proven by direct acts of the latter and of his family. recognized son. Fernandez. duly entitled to share in the latter's estate in the proportion determined by law. Francisco Osorio. in which he alleged that plaintiff is a natural son of one Francisco Osorio y Reyes who died in 1896. as his natural son. became a widower. No. specified and described in the fourth paragraph of the complaint and now in the possession of Soledad Osorio. Francisco Osorio y Garcia. to which defendants excepted and by written motion moved for a reopening of the case and a new trial. Said counsel therefore prayed the court to render judgment absolving defendants from the complaint. that said Francisco Osorio y Garcia has been in continuous possession of the status of natural son of said Osorio y Reyes. 68 of the year 1899. the same was approved and forwarded to. that the defendant Soledad Osorio be ordered to recognize plaintiff as a natural son of said Francisco Osorio y Reyes. VS. he maintained intimate relations with ConsolaciOn Garcia y Morillo. an unmarried woman. PLAINTIFF AND APPELLEE. the clerk of this court. wherefore the defendant Soledad Osorio is not obliged to recognize him as such. On January 29.[ G. the latter answered denying each and all the facts therein contained. that the defendant Soledad Osorio is the lawful daughter and lawful heir of said Francisco Osorio y Reyes and is married to Vicente T. and. March 29. raised by counsel for defendants from the judgment of September 10. 10474. and we are confined to deciding whether his father Osorio y Reves did by his acts lead his relatives and other persons not of his kin to believe that he recognized plaintiff as his natural son. is a natural. that said defendant be ordered to furnish subsistence to plaintiff in such amount as the court might deem proper to fix. that in no public document. the father of the defendant Soledad Osorio. and we have to determine whether plaintiff has enjoyed the status of natural son who was duly recognized by his father during the latter's lifetime. Said counsel petitioned that as plaintiff was a minor Joaquin Luciano be appointed by the court as his curator ad litem. 1916 ] FRANCISCO OSORIO Y GARCIA. 1914. the child begotten by said . The demurrer interposed by counsel for defendants to the aforementioned complaint having been overruled. pursuant to article 119 of the Civil Code and the provisions of General Orders No. The fact is not to be gainsaid that after Francisco Osorio y Reyes.

Plaintiff's own grandfather. her brother. and. he always considered plaintiff to be his natural son. and that plaintiff. a natural son of my son Francisco Osorio. Osorio.widower. proven by the attendance of his father at his baptism. lived in the house of his paternal grandparents and the latter had supported him and provided him with all the necessities of life. It is also an unquestionable fact. issued and attested by the former acting parish priest of the pueblo of Cavite. deceased. an omission which makes it impossible for this court to review the evidence adduced by the parties. Antonio Osorio. and the spinster. 119. as evidenced by the baptismal certificate Exhibit A. Consolacion Garcia. recognized son of Francisco Osorio y Reyes. that witness considered plaintiff's mother to be her sister-in-law. all of which is in possession of the defendant spouses (agreement. 1902. in view of the fact that appellants took no exception to the order overruling their motion for a new trial. according to the facts proven in this case and the law on the subject. a widower. that she and her parents respectively considered plaintiff to be their nephew and grandson.)" The acts performed by Francisco Osorio are unimpeachable proof that. should be reputed to be their natural son and. after the death of his father Francisco Osorio y Reyes. Father Cecilio Damian. . his natural father. 456 of the Court of First Instance of Cavite: "I also leave to my grandson. while living. a legitimate daughter of the father of both of them. a spinster. therefore. Francisco Osorio y Garcia. the presbyter Pedro Manalac baptized in the parish of Cavite a boy born 15 days before. as capable of being legitimized or recognized by his parents (art. Exhibit B. it is by all means proper to affirm the judgment appealed from. Francisco Osorio y Garcia. deeming the errors thereto assigned to have been refuted. Plaintiff's natural filiation has been confirmed by his grandfather and by a daughter of his grandfather. it was said that: "Recognition of the child as a natural child must be made if he has been in continuous possession of his filiation. 19 of the record). affirm. p. and. and by his father's always having attended to the care. recognized him as such natural. 1893. bequeathed a part of his property to him." So that the plaintiff. and Maria Consolacion Garcia y Morillo. a sister of plaintiff's father. named Francisco Abdon. recognized son of Francisco Osorio y Reyes and as entitled to the rights granted him by law in respect to his deceased father's estate. education and support of his son. the property * * * (described in the will. So ordered. with the costs against appellants. in the certificate in which his name and that of his mother appear. making the following provision in his will. we should for the foregoing reasons. Code). corroborated the fact that the latter. is entitled to have his half sister Soledad Osorio. that on August 13. and by his father's statement to various friends that the boy was his natural son. and conformably to the weight given by the lower court to the evidence. In a decision rendered by the supreme court of Spain on June 23. a sister of Francisco. from the time of his birth. Civ. as we do hereby affirm the said judgment. Tomasa Osorio. the natural son of Francisco Osorio y Reyes. probated as case No. to make his filiation more manifest. supported plaintiff and plaintiff's mother. recognize him as being the natural. therefore. the filiation of the baptized child appearing in a document found in the files of said parish and signed by said priest and two witnesses. As for the rest. and admitted in evidence at the trial. though the document contains errors.

in the Court of First Instance in the province in which he resides at the time of his death. 1963. that this Court "has no jurisdiction to try the above-entitled case in view of the pendency of another action for the settlement of the estate of the deceased Rev. and invoking our ruling in Ongsingco vs. JUAN DE BORJA. 1966 ANGELA RODRIGUEZ. that he was buried in Parañaque. on the same date. and that movants clearly filed the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising jurisdiction over the probate proceedings". and that on March 12. Maria Rodriguez and Angela Rodriguez. the latter Court has no jurisdiction to entertain the petition for probate. Tan and De Borja. 3907 entitled 'In the matter of the Intestate Estate of the deceased Rev. through counsel. deposited in the Court of Bulacan. and that he left real properties in Rizal. shall exercise . and if he is an inhabitant of a foreign country. that on March 11. 1963. as previously stated denied the motion to dismiss on the ground that a difference of a few hours did not entitle one proceeding to preference over the other. 1955. MARIA RODRIGUEZ. that on March 4. whether a citizen or an alien.R. or letters of administration granted. L-21993 June 21. take the stand that the Court of First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk of Court on March 4. for its refusal to grant their motion to dismiss its Special Proceeding No. Rodriguez. Annex 0). and died without leaving a will and praying that Maria Rodriguez be appointed as Special Administratrix of the estate. Reconsideration having been denied. namely. Tan and De Borja. aforementioned petitioners filed before the Court of First Instance of Rizal a petition for the settlement of the intestate estate of Fr. Celestino Rodriguez died on February 12. as early as March 7. Rodriguez was a resident of Parañaque. The court first taking cognizance of the settlement of the estate of a decedent. petitioners. 1963. movants. 1963 before the Court could act on the petition. since they filed a petition to examine the same. came to this Court. citing as authority in support thereof the case of Ongsingco Vda. Quezon City and Bulacan. Petitioners Angela. and his estate settled. The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was filed at 8:00 A. that on March 12. that he was Parish priest of the Catholic Church of Hagonoy. No.G. on the other hand. ET AL. Sp. Abelardo and Antonio Rodriguez. movants were aware of the existence of the purported will of Father Rodriguez. ANATOLIA PANGILINAN and ADELAIDA JACALAN. No. 1955. July 27. Bulacan.R. The records show that Fr. SECTION 1. L-7792. Fr. the Court of First Instance of any province which he had estate. that.M. on March 12. petition this Court for a writ of certiorari and prohibition to the Court of First Instance of Bulacan. Fr. 1963. Cavite. 1331. Maria. Celestino Rodriguez in the Court of First Instance of Rizal. from the year 1930 up to the time of his death in 1963. The petitioners Pangilinan and Jacalan. and that the case in this Court therefore has precedence over the case filed in Rizal on March 12. now petitioners. The facts and issues are succinctly narrated in the order of the respondent court. 1963. The Court of First Instance. that Fr. de Borja vs. — If the decedent is an inhabitant of the Philippines at the time of his death. Branch III. Proceedings No. 1963 while the petition for probate was filed in the Court of First Instance of Bulacan at 11:00 A. respondents. 1963. July 27. Abelardo and Antonio. vs. Rodriguez alleging. 7792. 1963 in the City of Manila. 1963 (Petition. Rizal. his will shall be proved.M. section 1 of the Rules of Court. It was stipulated by the parties that Fr. Celestino Rodriguez which was filed ahead of the instant case". the same was withdrawn.. HON. dated June 13. 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the will delivered by them on March 4. in this wise: It is alleged in the motion to dismiss filed by Angela. that on March 8. Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of Bulacan a purported last will and testament of Fr. Rizal. which said Court is alleged to have taken cognizance of without jurisdiction. surnamed Rodriguez. Maria. relying principally on Rule 73. among other things. G. Where estate of deceased persons settled. as Judge of the Court of First Instance of Bulacan. through counsel filed a petition for leave of court to allow them to examine the alleged will. Rodriguez was born in Parañaque.

Rule 77. Since the testament of Fr. because such legal provision is contained in a law of procedure dealing merely with procedural matters. as far as it depends on the place of residence of the decedent. 74 Phil.. Notice thereof to be published. providing that the estate of a deceased person shall be settled in the province where he had last resided.R. Tanunchuan vs. procedure is one thing and jurisdiction over the subject matter is another. Dy Buncio & Co. except in an appeal from that court. even if no petition for its allowance was filed until later. the Law of Procedure. 1963. p. there are many Courts of First Instance in the Philippines.. that detail would not imply that the Bulacan court lacked jurisdiction. 3. 190. Reyes vs. 239. the power to settle decedents' estates is conferred by law upon all courts of first instance. and issued the corresponding notices conformably to what is prescribed by section 3. in a newspaper of general circulation in the province. the petition is deemed to relate back to the time when the will was delivered. We find this recourse to be untenable. even if no petition for its allowance is as yet filed. Act No. such Court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof. Section 56. Rizal. Petition. Rodriguez's 33 years of residence as parish priest in Hagonoy. shall not be contested in a suit or proceeding. and the domicile of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw Singco. 46. Rule 76. 73 Phil. 136.1 Since. Where the petition for probate is made after the deposit of the will. and. 1942). The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament. or when the want of jurisdiction appears on the record. the precedence and exclusive jurisdiction of the Bulacan court is incontestable. province of Bulacan (t. No. The jurisdiction assumed by a court. and consider that he retained throughout some animus revertendi to the place of his birth in Parañaque. As ruled in previous decisions.jurisdiction to the exclusion of all other courts." and in the case at bar the Bulacan court did not have it because the decedent was domiciled in Rizal province. 48). section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "the Court having jurisdiction. Rodriguez was submitted and delivered to the Court of Bulacan on March 4. Diaz. 190. p. Court to appoint time for proving will. because upon the will being deposited the court could. or of the location of his estate. Thus. . If we consider such question of residence as one affecting the jurisdiction of the trial court over the subject-matter. Vergara. or that he left personal property in Hagonoy. We can not disregard Fr. 20 Phil. But no newspaper publication shall be made where the petition for probate has been filed by the testator himself. while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on March 12. have taken steps to fix the time and place for proving the will. section 1. — When a will is delivered to. section 600 of Act No. in the original case. Rodriguez is deceased. however. 48206. December 31. (Attorney General vs. the Court having jurisdiction. The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4. That this is of mischievous effect in the prompt administration of justice is too obvious to require comment. (Cf. eight days later. Rec. hearing of June 11. Bulacan (1930-1963).. motu proprio. 73 Phil. Annex "H". 1äwphï1. Furthermore. could not have been intended as defining the jurisdiction of the probate court over the subject matter. of the Revised Rules of Court (Section 3.s.ñët But.) Motion for reconsideration is denied. as we have said time and again. the place of residence of the deceased is not an element of jurisdiction over the subject matter but merely of venue. of the old Rules): SEC. Bernabe vs. Neither party denies that the late Fr. or a petition for the allowance of a will is filed in. 1963. No. 5 — confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased. 523.n.. fixes the venue or the place where each case shall be brought. 676). 484. but even if we do so. That is sufficient in the case before us. G. and shall cause notice of such time and place to be published three (3) weeks successively.) The law of jurisdiction — Act No. section 600. petitioners object. In the Kaw Singco case (ante) this Court ruled that: ". And it is upon this ground that in the new Rules of Court the province where the estate of a deceased person shall be settled is properly called "venue" (Rule 75. the effect shall be that the whole proceedings including all decisions on the different incidents which have arisen in court will have to be annulled and the same case will have to be commenced anew before another court of the same rank in another province. previous to the time appointed. Manila Railroad Company.

or repudiates the inheritance. or one which has subsequently lost its validity. Therefore. Certainly the order of priority established in Rule 73 (old Rule 75) was not designed to convert the settlement of decedent's estates into a race between applicants. 10 Phil. Of them only one could be of proper venue. (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled. Says Article 960 of the Civil Code of the Philippines: ART. except in cases provided in this Code. et al. intestate succession is only subsidiary or subordinate to the testate. (Sec. and no right of accretion takes place. since the same enjoins that: The Court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. or with a void will. with the administration of the properties as the price for the fleetest. (2) When the will does not institute an heir to.The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any other. "only after final decision as to the nullity of testate succession could an intestate succession be instituted in the form of pre-established action". that court is entitled to assume jurisdiction to the exclusion of all other courts. without taking venue into account. the writ of certiorari applied for is denied. The institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will of Father Rodriguez is pending. or dispose of all the property belonging to the testator. after they learned of the delivery of the decedent's will to the Court of Bulacan. Costs against petitioners Rodriguez. in our system of civil law. patently done with a view to divesting the latter court of the precedence awarded it by the Rules. yet the rule grants precedence to that Court whose jurisdiction is first invoked. 1) This disposition presupposes that two or more courts have been asked to take cognizance of the settlement of the estate. legal succession shall take place only with respect to the property in which the testator has not disposed. . or if the heir dies before the testator. (4) When the heir instituted is incapable of succeeding. The other reason is that. In such case. 960. Legal or intestate succession takes place: (1) If a person dies without a will. there being no substitution. It is the proceedings in the Rizal Court that should be discontinued. There are two other reasons that militate against the success of petitioners. proceedings. as ruled in Castro. One is that their commencing intestate proceedings in Rizal. 307. said court did not commit any abuse of discretion. vs. even if it were a case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court. was in bad faith. since intestacy only takes place in the absence of a valid operative will. Wherefore. and that in refusing to dismiss the probate. We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate in question. Martinez.

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