G.R. No.

L-32636

March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased. A.W. FLUEMER, petitioner-appellant, vs. ANNIE COUSHING HIX, oppositor-appellee. C.A. Sobral for appellant. Harvey & O' Brien and Gibbs & McDonough for appellee. MALCOLM, J.: The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance Tuason denying the probate of the document alleged to by the last will and testament of the deceased. Appellee is not authorized to carry on this appeal. We think, however, that the appellant, who appears to have been the moving party in these proceedings, was a "person interested in the allowance or disallowance of a will by a Court of First Instance," and so should be permitted to appeal to the Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780). It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. the courts of the Philippine Islands are not authorized to take American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the sale of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed.

In addition, the due execution of the will was not established. The only evidence on this point is to be found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the testator in the presence of two competent witnesses, of that these witnesses subscribed the will in the presence of the testator and of each other as the law of West Virginia seems to require. On the supposition that the witnesses to the will reside without the Philippine Islands, it would then the duty of the petitioner to prove execution by some other means (Code of Civil Procedure, sec. 633.) It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not establish this fact consisted of the recitals in the CATHY will and the testimony of the petitioner. Also in beginning administration proceedings orginally in the Philippine Islands, the petitioner violated his own theory by attempting to have the principal administration in the Philippine Islands. While the appeal pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the was presented for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses thereto , and ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the will in the Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the Philippines the principal administration and West Virginia the ancillary administration. However this may be, no attempt has been made to comply with Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. There is no showing that the deceased left any property at any

which may authenticate and legalized under the laws of the state or country where it was granted. vs. D. if granted in a foreign country. Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie Cousins Hix on October 8. opponent-appellee. California. 52 Phil. Messrs. she alleges. and a resident of Cebu. and have the same effectiveness quesi has been granted in accordance with laws of these Islands. That Article 635 of the Civil Procedure Code reads: A will executed outside of the Philippines. in the State of West specific pronouncements on the validity or validity of this alleged divorce... 1943 in the concentration camp at the University of Sto . GR No. 1925. DALTON. territory. maintains that Article 635 of the Civil Procedure Code was repealed by Rule 78. The alien may have to after his death of his property in the Philippines by will and is not forced to grant the Philippines. Article VIII of the Constitution. legitimate son of William R. it must be shown that the will had been probated previamenteen that country according to Article 1 of Rule 78. must be in accordance with the laws of that country. was legalized will made in Paris. L-4113 June 30. 1949 an application in the Court of First Instance of Cebupidiendo the legalization of a document. Dalton presented 'on February 10. or country. 291. or any foreign country. July 1949. in which it was stated that the will made in California and could legalized in that state. Francisco Varela Calderon because it was a testament to podiaser legalized in accordance with the laws of France. Manila.place other than the Philippine Islands and no contention that he left any in West Virginia.. The granting of a testamentoes a legal act can be performed in the Philippines or abroad. under Section 13. Giberson. CD Johnston and AP Deen for appellant. United States. stating: ". otorgadoen April 29. The applicant objected to the motion to dismiss. be authenticated. On June 20. 134. by the late Dr. before a will made in country extranjeropueda be legalized in the Philippines. that Giberson was a citizen of the State of Illinois. is holographic will of William R. the opponent filed a mocionpidiendo dismissal of the request. PAUL. According to the laws of Such state. LELA G. In Case of Varela Varela against Calderon. but according to the . 1920 in San Francisco. claiming that.. EF Francisco Remotique for appellee.. For all of the foregoing. that the request does not allege that the will had already been legalized in California. " Against this order the applicant appeals. or any state or territory thereof. which is universally adopted rule. under our existing rules only wills Those That have Previously been PROVED and allowed in the United States. In 1. with the costs of this instance against the appellant. you can do it in your own country or another.. Applicant-Appellant. 1950 the judge dismissed the request. France. The facts are stated in the court's decision. it does not represent the true will of the late Giberson: and has not been OTOR gado according to the law. filed or recorded in the proper court of first instance in the Philippines . legalized and registered in the Philippines. Giberson. A person may dispose of his property to his death after by will. the judgment appealed from will be affirmed. This article and has been applied in the case of Babcock Templeton against Rider Babcock. Giberson SPRING. Philippines. in support of his theory. Giberson Spring. and died on August 6. Tomas. Giberson. may be allowed. 1952 Probate of the late William R.. presented an opposition alleging that the will is apocryphal.. The opposition. J. 57 Phil. may be legalized in the Philippines. : Lela G.

By amending this Court Civil Procedure Code. territory or country may be legalized yarchivados registered in the Court of First Instance of the testator hath provinciaen property. or in a foreign state or country. therefore. Widow of Light * 16 Lawyer Journal. It reverses the order appealed from with costs against the respondent. Bautista Angelo and Labrador. giving them pedirjudicialmente cause of action for the implementation of the last testator's will regardless of the place of execution. "The law can not be enmendadapor substantive rules of procedure. If a will made in a foreign country can be authenticated in accordance with the laws of that country may also legalized in the Philippines. oppositors-appellee.R. filed. or any State or Territory thereof. Capistrano for appellant. or any state or territory thereof. may be allowed.. or country. if it can be certified in accordance with the laws of that country.SECTION 1. Bengzon. Bilbao who died on July . " This articulono conflicts with Article 635. in accordance with the laws of that state. vs. in fact. . has the will to be legalized in a foreign country in accordance with the laws of that country may also legalizsarse Philippines.Wills PROVED and allowed in theUnited States.) For both. Padilla. FILEMON ABRINGE and FRANCISCO ACADEMIA. Lamberto Macias and Francisco R. It is untenable. Wills proved Please islands outside may be allowed here . MM. CLEOFAS BILBAO. Section 1 of Rule 78 is not more than a transplantation of Article 637 of the Civil Procedure Code. Section 1 of Rule 78 can not prevent legalized in Philippines a will made in a foreign country. filed. Tuason. SEC. We reproduce the two provisions: RULE 78 . The underlined words in the second provision is not found in the first. petitionerappellant. Pedro Basa. BILBAO. or a state or paisextranjero. concur. 623. This provision is substantive. J. respecting the freedom of the testator to give his will anywhere. Fair.laws of the country in which it gives. Paras. RAMON N. there is still subsisting as articulo635 substantive law of the Civil Procedure Code. MONTEMAYOR. Sandiong and Quinciano Vailoces for appellees. CATALINA BILBAO. may be allowed. Pres." (Reyes v. not previously required to be legalized in this country. EUSEBIA BILBAO. G. 1950 In re Will of Victor Bilbao. make the rights of beneficiaries of the will: they are assured to legalize wills otorgadosfuera Philippine Islands if they can be legalized in the country in which they were granted.Article 635 of the Civil Procedure Code.: This is an appeal from a decision of the Court of First Instance of Negros Oriental denying the petition for admission to probate of the last will and testament of Victor S. Perpetuo A. Sinesa provision would be truncated test the power.Wills PROVED and allowed in a foreign country. . and recorded by the Court of First Instance proper in the Philippines. According To The Laws of Such State. 637. L-2200 August 2. According To The Laws of Such country. Montemayor. Wills PROVED outside Philippines may be allowed here . And Article 637 reads: "Wills authenticated and legalized in the United States. or property by such efectados wills. the theory of the opposition. DALMACIO BILBAO. No. with more reason legalizadosen wills and foreign countries in accordance with the laws of these countries may also legalized in the Philippines. more than its corollary noes. but not the substance. Territory. and recorded in the Court of First Instance of the province in Which the testator has real or personal estate on Which Such will may Operate . only amended the procedural part.

" The petition for probate was opposed by one Filemon Abringe. and that it was not executed and attested to as required by law. 190. and because joint and reciprocal wills are neither regarded as invalid nor on the contrary they are allowed. 1931. either for their reciprocal benefit or for the benefit of a third person. 1943. therefore one of first impression and naturally we are constrained to act and to proceed with care and caution. with particular attention to any reference to or ruling on article 669 of the Civil Code but we have failed to find any case wherein that particular codal provision has been discussed or applied. then article 669 of the Civil Code prohibiting the execution of joint wills whether reciprocal or for the benefit of a third party should be considered as having been repealed and superseded by the new law. The sole question and issue squarely raised in this appeal is. 618. be given and transmitted to anyone or either of us. . particularly sections 614. Navarro. and any other property belonging to either or both of us. In the case of in the matter of the will Kabigting (14 Phil. We cannot agree to the contention of the appellant that the provisions of the Code of Civil Procedure on wills have completely superseded Chapter I. among other grounds.. that "Chapter XXXI. The will in question was executed on October 6. and that it must be deemed to have impliedly repealed the provision of the Civil Code (Title III. Chapter I) on the matter . article 666 of the Civil Code regarding mental capacity of the testator has been cited and applied together with section 614 and 634 of the Code of Civil Procedure regarding a will executed in 1924. Navarro. and that a will of that kind is neither contemplated by Act No. which petition was filed by his widow and cotestator Ramona M. have been cited and applied together with section 618 of the Code of Civil Procedure regarding requisites of wills. 463). Lopez (48 Phil. a near relative of the deceased. 238). In the study we have made of this subject. In the case of Torres and Lopez De Bueno vs." The thesis of the appellant is. After hearing. declaring it either repealed or still in force. The two testators in their testament directed that "all of our respective private properties both real and personal. the trial court found the will to have been executed conjointly by the deceased husband and wife for their reciprocal benefit. and all of our conjugal properties. known as the Code of Civil Procedure nor permitted by article 669 of the Civil Code which provides: Two or more persons cannot make a will conjointly or in the same instrument. on a single page or sheet by the deceased Victor Bilbao jointly with his wife Ramona M. In the case of Marin vs. or who may remain the surviving spouse of the other. Act 190. where the will was executed in the year 1908... who may survive the other." that inasmuch as the present law on wills as embodied in the Code of Civil Procedure has been taken from American law. realizing the importance and far-reaching effects of any doctrine to be laid down by us in the present case. Nacianceno (19 Phil. The only assignment of error made in the appeal is that "the lower court erred in not finding that a joint and reciprocal will particularly between husband and wife is valid under the present law.13. Title III of the Civil Code on the same subject matter. We have made a rather extensive study of the cases decided by our Supreme Court covering the field of wills. article 667 of the Civil Code was cited in the dissenting opinion of Mr. resulting in the complete repeal of said Civil Code provisions. that the alleged will was executed by the husband and wife for their reciprocal benefit and therefore not valid. it should be interpreted in accordance with the said law. appears to be a complete enactment on the subject of execution of wills and may thus be regarded as the expression of the whole law thereon. we have found a number of cases decided by this court wherein several articles of the Civil Code regarding wills have not only been referred to but have also been applied side by side with the provisions of the Code of Civil Procedure. 772). articles 662 and 663 of the Civil Code regarding capacity and incapacity of persons to dispose by will. Justice Torres.

663) wherein the wills involved had been executed after the enactment of the Code of Civil Procedure. And. It is also contended that in the case of Macrohon Ong Ham vs. In the case of Testate estate of the late Bernabe Rodriguez (CAG. as well as the consideration that its provisions are not incompatible with those of the Code of Civil Procedure on the subject of wills. Considering the wisdom of the provisions of this article 669 and the fact that it has not been repealed. 240). in other words they were reciprocal beneficiaries in their respective . Justice Willard as shown by his notes on the Civil Code. which was made jointly by husband and wife in the same instrument. including the members of the Code Commission who prepared it.. enforceability. Saavedra (51 Phil. 333).. 838). As a rule this Tribunal does not pass upon the legality. Judge Camus in his book on the Civil Code does not include this article among those he considers repealed. at least not expressly. July 1. And we are not alone in this opinion. After examining said case we find the contention untenable. page 33. The will involved was executed in 1915 when the Code of Civil Procedure was already in force. where the will is not only joint but reciprocal.In the cases of Postigo vs. Vol. The above-cited authorities all go to show that it is not exactly correct to say that the provisions of the Code of Civil Procedure regarding wills completely cover the subject matter and therefore have superseded the provisions of the Civil Code on the point. article 739 of the Civil Code regarding revocation of wills has been applied in harmony with section 623 of the Code of Civil Procedure. and it is necessary to rule upon it in order to determine the case. Sinco and Capistrano in their work on the Civil Code. may be tempted to kill or dispose of the other. was admitted to probate by the Court of First Instance of Zamboanga and the decision was affirmed by this court. on page 18 believes that this article 669 is still in force. meaning that said article has already been repealed. knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor. II. article 675 of the Civil Code regarding interpretation of wills was cited and applied. favorably cite Justice Willard's opinion that this article is still in force. Gaz. is not unwise and is not against public policy. In the case of Samson vs. Borjal (13 Phil. but only on the manner the properties involved were to be distributed or otherwise disposed of. Lastly.. we believe and rule that said article 669 of the Civil Code is still in force..R. but there was no appeal from the order approving the will on the ground of its validity. the spouse who is more aggressive. especially as regards husbands and wife is that when a will is made jointly or in the same instrument. In the will involved therein. faithless. stronger in will or character and dominant is liable to dictate the terms of the will for his or her own benefit or for that of third persons whom he or she desires to favor.. It is true that the will already described was allowed probate by the trial court. No. thereby proving that this tribunal has disregarded the prohibition regarding the execution of wills conjointly under article 669 of the Civil Code. either one of the spouses who may happen to be unscrupulous. or desperate. Natividad vs. Gabino (36 Phil. reference to this article 669 of the Civil Code. Mr. 1948. 1627 -R. or applicability of a law unless that the point is raised and put in issue. 267) a will executed in the year 1923. The Supreme Court never touched this point of invalidity nor the applicability of article 669 of the Civil Code. we find that this article 669 has been reproduced word for word in article 818 of the New Civil Code (Republic Act No. The implication is that the Philippine Legislature that passed this Act and approved the New Civil Code. 46 Off. the testator Rodriguez instituted his wife his universal heir and the latter in her separate will equally instituted her husband Rodriguez as her universal heir.. depending upon the properties sought to be disposed of by him and those to be inherited by his heirs on intestate succession when not covered by the will. particularly the sections regarding wills. are of the opinion that the provisions of article 669 of the old Civil Code are not incompatible with those of the Code of Civil Procedure. Naval (41 Phil. The reason for this provision. though indirectly. but merely ruled that a testator may die both testate and intestate. wicked. The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more persons conjointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person. 386). In re Estate of Calderon (26 Phil.

administrator-appellee. Administrator". JOSE DE BORJA.appellant. No. L-28040 Pelaez. Jose de Borja. as Administrator of the Testate Estate of the late Josefa Tangco. DE DE BORJA. 1972 TASIANA 0. J. vs. Opposition to the probate of the will of Rodriguez was base on the prohibition contained in article 669 of the Civil Code. as administrator. as Administratrix of the Testate Estate of the late Francisco de Borja. The Court of Appeals said that what the law prohibits under said article is two or more persons making a will conjointly or in the same instrument and not reciprocity in separate wills.R. Special Administratrix of the Testate Estate of Francisco de Borja. CAYETANO DE BORJA. Jalandoni & Jamir and David Gueverra for defendantappellant. TASIANA O.. R-7866.:p Of these cases. DE DE BORJA. de de Borja. plaintiffappellee. VDA. we believe and hold that the provision of the Code of Civil procedure regarding wills have not repealed all the articles of the old Civil Code on the same subject matter. "Testate Estate of Josefa Tangco. G. JOSE DE BORJA. Andres Matias for appellee Cayetano de Borja. In view of the foregoing. DE BORJA. Pelaez. with costs. 1972 TESTATE ESTATE OF JOSEFA TANGCO. .R. 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. L-28611 Sevilla & Aquino for plaintiff-appellee. special administratrix of the testate estate of Francisco de Borja. JOSE DE BORJA. Case No. Branch I. vs. VDA. G. 1972 TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA. and that article 669 of the Civil Code is not incompatible or inconsistent with said provision of the Article 669 of the Civil Code is still in force. L-28568 Sevilla & Aquino for special administratrix-appellee. MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco. entitled. numbered L-28040 is an appeal by Tasiana Ongsingco Vda. In conclusion. JOSE DE BORJA. L-28611 August 18. the decision appealed form. vs. in its Special . J. G.L. Branch II. Jalandoni & Jamir for oppositor-appellant. in its Special Proceeding No. No L-28568 August 18. appellees. is hereby affirmed. oppositor-appellant. TASIANA VDA. Pelaez.separate wills. No. Sevilla & Aquino for appellant.R.B. L-28040 August 18. Jalandoni & Jamir for administrator-appellee. REYES. Quiogue & Quiogue for appellee Matilde de Borja. 1 from the approval of a compromise agreement by the Court of First Instance of Rizal. the first. special Administratrix appellee. defendant-appellant.

filed a petition for the probate of her will which was docketed as Special Proceeding No. Rizal. Tasiana Ongsingco. Josefa Tangco. was appointed co-administrator. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal. Atty. some eighteen (18) cases remain pending determination in the courts. she was appointed special administratrix. entitled. 832 of the Court of First Instance of Nueva Ecija. claims. their son.. Upon Francisco's death. Jose de Borja. in 1955. which is the main object of the aforesaid compromise agreement. Vda. Jose became the sole administrator of the testate estate of his mother. Tasiana Ongsingco Vda. Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija. first spouse of Francisco de Borja. the various court litigations. Branch X. "Testate Estate of Francisco de Borja. WITNESSETH THAT it is the mutual desire of all the parties herein terminate and settle. assisted by her lawyer. Special Administratrix". AND The heir and surviving spouse of Francisco de Borja by his second marriage. the parties herein have agreed voluntarily and without any reservations to enter into and execute this agreement under the following terms and conditions: 1. Luis Panaguiton Jr. Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco. Tasiana O. on 14 April 1954. Branch I. R-7866 of the Court of First Instance of Rizal. between them in connection with the administration. Proc. adjudication and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco. And Case No. de de Borja. declaring the Hacienda Jalajala Poblacion. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. including the three cases at bar. etc. de Borja. settlement. 2 by and between "[T]he heir and son of Francisco de Borja by his first marriage.Proceeding No. Atty. Luis Panaguiton Jr. as the separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the community with his first wife. de Borja. 832. upon the death of his wife Josefa Tangco on 6 October 1940. namely. In order to put an end to all these litigations. partition." and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage. When Francisco died. The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala. where. The validity of Tasiana's marriage to Francisco was questioned in said proceeding. assisted by her lawyer. In 1946. THAT with this end in view. Francisco de Borja was appointed executor and administrator: in 1952. Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco." 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. Josefa Tangco. and that said hacienda pertains exclusively to his testate estate. Branch II. It is uncontested that Francisco de Borja. The will was probated on 2 April 1941. in its Civil Case No. controversies. counterclaims. Tasiana Ongsingco Vda. 7452. a compromise agreement was entered into on 12 October 1963. . While a widower Francisco de Borja allegedly took unto himself a second wife. presently under administration in the Testate Estate of Josefa Tangco (Sp. with finality. namely. which is under administrator in Special Proceeding No. No.

their heirs. 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. and Sp.500. 7866-Rizal. 832-Nueva Ecija and Sp. 2. CFI Nueva Ecija and Civil Case No. de de Borja. sum or sums of money. Rizal). Proc. y por el Este con los terrenos de la Familia Maronilla with a segregated area of approximately 1. 7452-CFI. executors. who. In consideration of above payment to Tasiana Ongsingco Vda. 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. That Tasiana Ongsingco Vda. 3033. . No. Thereafter.000. Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco. 4. damages. the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to Tasiana Ongsingco Vda. which represent P200. administrators. waive. Proceedings Nos. Proc. or now have or may have against each other. cause or causes of action. de de Borja hereby assumes payment of that particular obligation incurred by the late Francisco de Borja in favor of the Rehabilitation Finance Corporation. Rizal. de de Borja the balance of the payment due her under paragraph 2 of this Agreement (approximately P766.00 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. por el Sur con los herederos de Marcelo de Borja. "Poblacion" from the payment to be made to Tasiana Ongsingco Vda. Cayetano and Matilde. suits. Civil Case No. successors.00) and issue in the name of Tasiana Ongsingco Vda. Proc. which shall be deducted by the buyer of Jalajala. de de Borja. from any and all liability. and assigns. debts. Sp. now Development Bank of the Philippines. which they ever had. the intention being to completely. 7866 and 1955. and Tasiana Ongsingco Vda. more specifically Sp. claims and demands whatsoever. in law or in equity. remise. amounting to approximately P30. as well as the case filed against Manuel Quijal for perjury with the Provincial Fiscal of Rizal. de de Borja the total amount of Eight Hundred Thousand Pesos (P800. successors. CFI-Rizal. release and discharge any and all manner of action or actions. withdraw. 832-Nueva Ecija.000 as his share in the payment and P600. 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. for themselves and for their heirs.000) Philippine Currency. respectively. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda.00. in cash. arising wholly or partially. corresponding certified checks/treasury warrants. "Poblacion. accounts." 3.500.7866. in turn. 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. No. y con el pico del Monte Zambrano. will issue the corresponding receipt to Jose de Borja. No. de de Borja.30 per square meter. absolutely and finally release each other.000 as pro-rata shares of the heirs Crisanto. and assigns. hereby forever mutually renounce. more or less. 5.313 hectares at the amount of P0. 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. al Oeste con Laguna de Bay.

Guevara. Guevara. while administrator Jose de Borja appealed the order of disapproval (G. ante.R. The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed. is against the law and public policy.. in claiming the validity of the compromise agreement. 1963. from the administration. 7. IN WITNESS WHEREOF. nevertheless. on 8 August 1966. and if they have divided the estate in a different manner. On 16 May 1966. the 12th of October. upon the facts that "(if) the decedentleft no will and no debts. Jose de Borja stresses that at the time it was entered into. and again. R-7866. 6. it has ceased to have force and effect. and the heirs are all of age. 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". in Guevara vs. bar the validity of the agreement. Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal. 832. L-28568) by the Court of First Instance of Nueva Ecija. Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. 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 not applicable to the case at bar. de de Borja expressly and specifically renounce absolutely her rights as heir over any hereditary share in the estate of Francisco de Borja. Special administratrix Tasiana Ongsingco Vda." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made. and (3) that even if it were valid. Guevara. Tasiana Ongsingco Vda. the probate of the will is a useless ceremony. to the Court of First Instance of Nueva Ecija. 479.R. This is apparent from an examination of the terms of the agreement between Jose de Borja and Tasiana . 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. Upon the other hand. the governing provision was Section 1. case No. He also relies on the dissenting opinion of Justice Moran. the non-fulfillment of the said sale will render this instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER. de de Borja opposed in both instances. it is argued. or the minors are represented by their judicial and legal representatives . The doctrine of Guevara vs. those circumstances. and lastly. and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco. The Rizal court approved the compromise agreement. upon receipt of the payment under paragraph 4 hereof.. 74 Phil. shall deliver to the heir Jose de Borja all the papers. 479. otherwise. Rule 74 of the original Rules of Court of 1940.directly or indirectly. Tasiana Ongsingco Vda. which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not. but the Nueva Ecija court declared it void and unenforceable. (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco. but its validity is. de de Borja. 74 Phil. wherein was expressed the view that if the parties have already divided the estate in accordance with a decedent's will. Philippines. L-28040). the probate of the will is worse than useless. case No. on 12 October 1963. settlement. That Tasiana Ongsingco Vda. 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. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G. first spouse of Francisco de Borja. in Special Proceeding No. in Special Proceeding No. the parties hereto have her unto set their hands in the City of Manila. 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. In assailing the validity of the agreement of 12 October 1963.

. Tasiana Ongsingco Vda. de de Borja". There is no stipulation as to any other claimant. This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. gives the contract the character of a compromise that the law favors. That this agreement shall take effect only upon the consummation of the sale of the property mentioned herein and upon receipt of the total . barring unworthiness or valid disinheritance. Crisanto. Thus. pp. all surnamed de Borja.. A compromise has upon the parties the effect and authority of res judicata.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. as noted by the Rizal Court. 79-82) are to be considered settled and should be dismissed. 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. creditor or legatee. 4 Of course. Art. the aleatory character of the contract does not affect the validity of the transaction. 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. can not apply to the case of Tasiana Ongsingco Vda. and on the other. even if the actual extent of such share is not determined until the subsequent liquidation of the estate. Wherefore. Art. for obvious reasons. the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. except that the consideration was fixed at P600. is that the latter can be enforced by execution proceedings. as established in the Guevara and analogous cases.000 (Opposition. Rec. The only difference between an extrajudicial compromise and one that is submitted and approved by the Court. It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no definite period for its performance. the prerequisite of a previous probate of the will. Tasiana Ongsingco was his compulsory heir under article 995 et seq.Ongsingco. However. It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja. although such stipulation. In support of such contention. Art. 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. L-28040. 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. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest. Matilde and Cayetano. 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. but there shall be no execution except in compliance with a judicial compromise. 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. neither does the coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them. 2037 of the Civil Code is explicit on the point: 8. of the present Civil Code. of Appeal. the same was intended to have a resolutory period of 60 days for its effectiveness. Annex/Rec. 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. to wit.. "the heir and surviving spouse of Francisco de Borja by his second marriage. pp. it is clear that the transaction was binding on both in their individual capacities. Paragraph 2 of said agreement specifically stipulates that the sum of P800. even without previous authority of the Court to enter into the same.46) and which contained the following clause: III. App. 2037. de de Borja. upon the perfection of the contract. 39. actual or eventual in the estate of Francisco de Borja and Josefa Tangco. if only because it serves to avoid a multiplicity of suits.

Tasiana Ongsingco Vda. and that circumstance is proof that the duly notarized contract entered into wit Jose de Borja under date 12 October 1963 (Annex A). which is in itself definite admission of her civil status. and in approving the compromise it fixed a term of 120 days counted from the finality of the order now under appeal. Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code: Art. for the carrying out by the parties for the terms of the contract. and as already shown. not the estate itself. It is finally charged by appellant Ongsingco.and full payment of the proceeds of the sale by the herein owner heirs-children of Francisco de Borja. provides in its par. this agreement will become null and void and of no further effect. all surnamed de Borja. 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.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. As owner of her undivided hereditary share. This circumstance is irrelevant.000 represent the "prorata share of the heirs Crisanto. although plainly intended to be so done. The Court of First Instance of Rizal so understood it. Furthermore. provided they do so within the period of one month from the time they were notified in writing of the sale of the vendor. 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. it was not notarized. 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 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. P600. since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late husband. Should any of the heirs sell his hereditary rights to a stranger before the partition. and while signed by the parties. that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. since it bears no date. The point is without merit. 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. and that the same appears not to have been finalized.000 recited in Annex 1. 1088. whose estate was the object of Special Proceeding No. 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. 832 of the Court of First Instance of Nueva Ecija. as well as by the Court of First Instance of Nueva Ecija in its order of 21 . 000 to be paid to Ongsingco. the compromise contract with Jose de Borja (Annex A). If a sale of a hereditary right can be made to a stranger. 2 heretofore transcribed that of the total consideration of P800. the 60 days resolutory term in the contract with the latter (Annex 1) not being repeated in Annex A. Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract (Annex 1). namely. but she was an heir of Francisco de Borja. Cayetano and Matilde. can not apply to the formal compromise with Jose de Borja. 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. the day being left blank "this — day of October 1963". was designed to absorb and supersede the separate unformalize agreement with the other three Borja heirs. Crisanto. Provided that if no sale of the said property mentioned herein is consummated. then a fortiori sale thereof to a coheir could not be forbidden. Hence. Cayetano and Matilde all surnamed de Borja" which corresponds to the consideration of P600. de de Borja". since the Hacienda de Jalajala (Poblacion) that was to be sold to raise the P800. since it carries a proposed notarial ratification clause. Tasiana could dispose of it in favor of whomsoever she chose.

of around 4. 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. 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. L-20840. for the sum of P800. in its order of 21 September 1964. had been originally acquired jointly by Francisco de . Coming now to Case G.R. in view of the conclusion reached by this Court in the two preceding cases (G. in a motion of 17 June 1964. and is.R. decreed that the agreement be ultimately performed within 120 days from the finality of the order. Francisco de Borja. 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. It was natural that in view of the widow's attitude. and that Jose de Borja himself. Ongsingco had unilaterally attempted to back out from the compromise agreement.September 1964. Guevara ruling.. which.363 hectares. We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become moot and academic.R. 33 SCRA 554. L-28611. the value of the Jalajala property has increased. and. in that while the purchasing power of the agreed price of P800. 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. 28040. therefore. upholding as valid the cession of Tasiana Ongsingco's eventual share in the estate of her late husband. that the compromise agreement of 13 October 1963 (Annex "A") had been abandoned. all of which objections have been already discussed. is particularly opposite in the present case. its resolution is still imperative. No. page 157). since the latter step might ultimately entail a longer delay in attaining final remedy. its order should be upheld. reversed. It is undisputed that the Hacienda Jalajala. 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. that Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de Borja. 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".000 has diminished. We conclude that in so doing. after its execution. L-24561. In her brief. Jose de Borja should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A". is the husband's private property (as contended by his second spouse. Josefa Tangco. It is difficult to believe. pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on Appeal. No. 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. The Court of First Instance of Rizal (Judge Herminio Mariano. that the amicable settlement referred to in the order and motion above-mentioned was the compromise agreement of 13 October 1963. now under appeal. however. 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. in Special Proceedings No. had declared that "no amicable settlement had been arrived at by the parties". Dizon. the Court of First Instance of Nueva Ecija. as heretofore described. while the contrary resolution of the Court of First Instance of Nueva Ecija should be. And as to the devaluation de facto of our currency. Tasiana Ongsingco). No. But as the question may affect the rights of possible creditors and legatees. had stated that the proposed amicable settlement "had failed to materialize". 30 June 1970. as required by this Court's Guevarra vs. Attorney Panaguiton. concededly acquired by Francisco de Borja during his marriage to his first wife. 832 (Amended Record on Appeal in L-28568. L-28568). etc. the Rizal court acted in accordance with law. as shown by the fact that. Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably. what We said in Dizon Rivera vs. the issue is whether the Hacienda de Jalajala (Poblacion).000 with the accompanying reciprocal quit-claims between the parties. or whether it forms part of the conjugal (ganancial) partnership with Josefa Tangco.

832 of the Court of First Instance of Nueva Ecija. de Borja. Jugo. Tasiana Ongsingco. And once more. he filed in the Special Proceedings No. instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 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). supporting the legal presumption in favor of the conjugal community. De Borja vs. 160. the Bagombong section to Bernardo de Borja. in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first wife). and declared the Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late Francisco de Borja. and his Administratrix. assessed at P297. 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 again. 932). Defendant Jose de Borja then appealed to this Court. compensatory.Borja. E. No. in the Reamended Inventory that. Notwithstanding the four statements aforesaid. moral and exemplary. Tasiana Ongsingco Vda. more or less. which are in the possession of the Administrator of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No. and the appealed order admits. Rec. as Administratrix of the Testate Estate of Francisco de Borja. in the Reamended Accounting of the same date. (Record on Appeal. 7866 of the Court of First Instance of Rizal" (Exhibit "4"). pages 7 and 105) On 20 November 1962.870 sq. Similarly. submitted therein in December.L. as well as for attorney's fees. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"). as executor of the estate of his deceased wife Josefa Tangco. Jalajala: N. held that the plaintiff had adduced sufficient evidence to rebut the presumption. de Borja. the plaintiff Tasiana O. Vda. Heirs of Marcelo de Borja O.R.488. The evidence reveals. per Judge Herminio Mariano. containing an area of 13. 1955. Defendant Jose de Borja further counterclaimed for damages. Hermogena Romero. 911. seeking to have the Hacienda above described declared exclusive private property of Francisco. Tasiana O. as oppositor in the Estate of Josefa Tangco. 54 Phil. 465).410. and the fact that they are plain admissions against interest made by both Francisco de Borja and the Administratrix of his estate. as administratrix of the Estate of 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. S. Laguna de Bay. Vda. Puang River. conformably to the presumption established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889). 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. The lot allotted to Francisco was described as — Una Parcela de terreno en Poblacion. in the course of judicial proceedings in the Rizal and Nueva Ecija Courts.O. in 1931. the Court of First Instance of Rizal. After trial. 337 . also filed in the proceedings aforesaid (Exhibit "7"). de Borja. herself. the Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal property. 7452) against Jose de Borja. De Borja 101 Phil. unless it be proved that it pertains exclusively to the husband or to the wife. 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 Special Proceedings No. m. Subsequently. but the private exclusive property of the late Francisco de Borja. and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. All property of the marriage is presumed to belong to the conjugal partnership. to be entitled to its possession. an inventory wherein she listed the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa Tangco. 26403 (De Barjo vs. the Hacienda was partitioned among the co-owners: the Punta section went to Marcelo de Borja. 528 of the province of Rizal. G. to the effect that: Art.

they are clear admissions against the pecuniary interest of the declarants. 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. witness Gregorio de Borja's testimony as to the source of the money paid by Francisco for his share was plain hearsay. It may be true that the inventories relied upon by defendantappellant (Exhibits "2".00.038 sq. 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. Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner. and as such of much greater probative weight than the self-serving statement of Francisco (Exhibit "F"). by Marcelo de Borja. Francisco de Borja and his executorwidow. and upon Bernardo's assent to the proposal.100.00 to pay the back taxes and said that the amount would represent Francisco's contribution in the purchase of the Hacienda. Tasiana Ongsingco. page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala. To which of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition. that upon receipt of a subsequent demand from the provincial treasurer for realty taxes the sum of P17. pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the Philippines. m. 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. that the entire Hacienda had been bought at a foreclosure sale for P40. As to Francisco de Borja's affidavit. and not admissible in the absence of cross examination.100 was contributed by Bernardo de Borja and P15. Plainly. "4" and "7") are not conclusive on the conjugal character of the property in question. In addition. hence inadmissible and of no probative value.000.260. A ring of artificiality is clearly discernible in this portion of Gregorio's testimony. son of Bernardo de Borja. and (b) the testimony of Gregorio de Borja. and a much bigger one of 1. assessed at P44. of which amount P25.. 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. Rizal) " refers precisely to the Hacienda in question. Exhibit "F".600. 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. Marcelo issue a check for P17. but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of the original Hacienda with his private funds. There is no way of ascertaining the truth of the statement. one of 72. "3". which is evidently the Hacienda de Jalajala (Poblacion). 2 February 1965.. the statement itself is improbable. We find the conclusions of the lower court to be untenable.n.357.000. pages 13-15) (Emphasis supplied) The Court below. Hence.hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala.000. (Hearing. the quoted portion thereof (ante. since he was merely repeating what Marcelo de Borja had told him (Gregorio).. m. Rizal). 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. since both Marcelo and Francisco de Borja were already dead when Gregorio testified.s. In the first place. but as already noted. Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly self-serving.00 entrusted to Marcelo. t. The inventories (Exhibits 3 and 4) disclose that there were two real properties in Jalajala owned by Francisco de Borja. but as exclusive property of the buyer.70 sq.000. . for which reason that share can not be regarded as conjugal partnership property.

to quiet title over certain parcels of land located in Abra. The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case No. while those involved in Cases Nos. The motion to amend the complaint was granted and on July 17. AGUSTINA NERI. 2 On August 28. the counsel for the plaintiff moved to amend the complaint in order to include certain allegations therein. et al. On September 1. 1976 ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their father) who represents the minors. On March 31. MAXIMA ARIAS BALLENA. L-28568 and L-28611 are reversed and set aside. L-28040 is hereby affirmed. and asked for substitution by her minor children and her husband. G. this petition for review. the defendants filed another motion to dismiss the complaint on the ground that Fortunata Barcena is dead and. From the order. In said hearing. 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. Demetrio V. the petitioners herein. While it is true that a person who is dead cannot sue in court. 856 and its orders denying the motion for reconsideration of said order of dismissal. 1975. but before the hearing of the motion to dismiss. The records of this case show that the MARTIN. 1975. de Borja in all three (3) cases. widow of JULIAN TAMAYO and HON.respondents. LEON BARCENA. No. MANUEL BARCENA. 1975. J: This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No. but the court denied the counsel's prayer for lack of merit. Pre for private respondents. mother of minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla. Said motion to dismiss was heard on August 14. counsel for the plaintiff received a copy of the order dismissing the complaint and on August 23. plaintiffs filed their amended complaint. LEOPOLDO GIRONELLA of the Court of First Instance of Abra. denying the motions for reconsideration of its order dismissing the complaint in the aforementioned case. IN VIEW OF THE FOREGOING. the same requires no pro announcement from this Court. entitled Fortunata Barcena vs. On May 9. petitioners. therefore. defendants filed a written motion to dismiss the complaint. ESPERANZA BARCENA. L-41715 June 18. has no legal capacity to sue. Federico Paredes for petitioners. instituted a civil action in the Court of First Instance of Abra. 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. On August 4. 856. 1975. 1975. 1975 Fortunata Barcena. counsel for the plaintiff confirmed the death of Fortunata Barcena. . 1975. Costs against the appellant Tasiana Ongsingco Vda.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 appealed order of the Court of First Instance of Rizal in Case No.. yet he can be substituted by his heirs in pursuing the case up to its completion.R. On August 19. vs. the court denied the motion for reconsideration filed by counsel for the plaintiff for lack of merit. 1975. 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. Hence. Leon Barcena. he moved to set aside the order of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court.

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. Fortunata Barcena was still alive. upon proper notice. therefore. 856 and refusing the substitution of parties in the case. it shall be the duty of his attorney to inform the court promptly of such death . 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. It is. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. Under Section 17.. guardian or other legal representatives. This is a grave error. Rule 3 of the Rules of Court "after a party dies and the claim is not thereby extinguished. the order of the respondent Court dismissing the complaint in Civil Case No. 856. This means that when the complaint was filed on March 31. was not extinguished by her death but was transmitted to her heirs upon her death. 5 When Fortunata Barcena. 856 of the Court of First Instance of Abra and the motions for reconsideration of the . and they cannot be deprived of their rights thereto except by the methods provided for by law. Under Section 16. instead of allowing the substitution. and therefore. Rule 3 of the Rules of Court "whenever a party to a pending case dies . dismissed the complaint on the ground that a dead person has no legal personality to sue. 1975. 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. upon being informed by the counsel for the deceased plaintiff that the latter was dead. Article 777 of the Civil Code provides "that the rights to the succession are transmitted from the moment of the death of the decedent. But the respondent Court refused the request for substitution on the ground that the children were still minors and cannot sue in court.. 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. the injuries to the person being merely incidental. Rule 3 of the Rules of Court. But what the respondent Court did. 6 In the causes of action which survive the wrong complained affects primarily and principally property and property rights. subject to the rights and obligations of the decedent. died her claim or right to the parcels of land in litigation in Civil Case No. the court is directed to appoint a guardian ad litem for the minor heirs. 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. Unquestionably.. to order the opposing party to procure the appointment of a legal representative of the deceased.. 1975. If thereafter she died." From the moment of the death of the decedent. administrator. was to dismiss the complaint. the property and rights of property affected being incidental. Rule 3 of the Rules of Court. 1975 while the complaint was filed on March 31.. This should not have been done for under the same Section 17.death of Fortunata Barcena took place on July 9. it is even the duty of the court. the court shall order. IN VIEW OF THE FOREGOING. 1975 and asked for the proper substitution of parties in the case. There is.. and to give the name and residence of his executor. the Rules of Court prescribes the procedure whereby a party who died during the pendency of the proceeding can be substituted. the court had acquired jurisdiction over her person. therefore. The respondent Court." The question as to whether an action survives or not depends on the nature of the action and the damage sued for. while in the causes of action which do not survive the injury complained of is to the person. no reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff. the legal representative of the deceased to appear and be substituted for the deceased. within such time as may be granted . Precisely in the instant case." 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. if the legal representative fails to appear. 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. therefore. This is another grave error because the respondent Court ought to have known that under the same Section 17. however. . the duty of the respondent Court to order the legal representative of the deceased plaintiff to appear and to be substituted for her. the heirs become the absolute owners of his property.

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.order of dismissal of said complaint are set aside and the respondent Court is hereby directed to allow the substitution of the minor children. . SO ORDERED.