INTESTATE ESTATE OF THE LATE VITO
BORROMEO, PATROCINIO BORROMEO-
HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON.
FRANCISCO P. BURGOS, Judge of the Court
of First Instance of Cebu, Branch
II, respondents.
G.R. No. L-41171 July 23, 1987
1. Vito Borromeo, a widower, died on March
13, 1952, at the age of 88 years, without
forced heirs but leaving extensive
properties in the province of Cebu. All his
brothers and sisters predeceased him.
2. On April 19, 1952, JOSE JUNQUERA
filed a petition for the probate of a one
page document as the last will and
testament, devising all his properties to
Tomas, Fortunato and Amelia (all
surnamed Borromeo), in equal and
undivided shares and designating
Junquera as executor.
3. Oppositions to the probate of the will
were filed. On May 28, 1960, the probate
court held that the document presented
as the will of the deceased was a forgery.
The decision was affirmed upon appeal.
4. The testate proceedings was converted
into an intestate proceedings. Several
parties came before the court filing
claims or petitions alleging themselves
as heirs of the intestate estate of Vito
Borromeo.
5. On April 10, 1969, the trial court issued
an order declaring the following, to the
exclusion of all others, as the
INTESTATE HEIRS OF THE
DECEASED VITO BORROMEO: Jose
Cuenco Borromeo, Judge Crispin
Borromeo, Vitaliana Borromeo,
Patrocinio Borromeo Herrera, Salud
Borromeom Asuncion Borromeo, Marcial
Borromeom Amelinda Borromeo de
Talam, and, The heirs of Canuto
Borromeo.
6. The court also ordered that the assets of
the intestate estate of Vito Borromeo
shall be divided into 4/9 and 5/9 groups
and distributed in equal and equitable
shares among the 9 declared intestate
heirs.
7. On August 25, 1972, respondent
FORTUNATO BORROMEO filed a
motion to be declared as one of the heirs
of the deceased, alleging that he is an
illegitimate son and that he was omitted
in the declaration of heirs.
a. As an acknowledged illegitimate
child, he stated that he was
entitled to a legitime equal in
every case to four-fifths of the
legitime of an acknowledged
natural child.
b. Finding that the motion of
Fortunato Borromeo was already
barred by the order of the court
dated April 10, 1969, the court
dismissed the motion.
8. Fortunato filed a motion for
reconsideration. In the memorandum he
submitted, Fortunato changed the basis
for his claim to a portion of the estate. He
asserted and incorporated a WAIVER OF
HEREDITARY RIGHTS (7/31/1967). In
the waiver, five of the nine heirs
relinquished to Fortunato their shares in
the disputed estate.
9. PETITIONER’S CONTENTION: The trial
court, acting as a probate court, had no
 jurisdiction to take cognizance of the
claim; Fortunato is estopped from
asserting the waiver agreement; that the
waiver agreement is void as it was
executed before the declaration of heirs;
that the same is void having been
executed before the distribution of the
estate and before the acceptance of the
inheritance; and that it is void ab
initio and inexistent for lack of subject
matter.
a. The "Waiver of Hereditary
Rights" has been cancelled and
revoked on June 29, 1968, by
Tomas L. Borromeo, Fortunato
Borromeo and Amelia
Borromeo, is without force and
effect because there can be no
effective waiver of hereditary
rights before there has been a
valid acceptance of the
inheritance the heirs intend to
transfer. Pursuant to Article 1043
of the Civil Code, to make
acceptance or repudiation of
inheritance valid, the person
must be certain of the death of
the one from whom he is to
inherit and of his right to the
inheritance. Since the petitioner
and her co-heirs were not certain
of their right to the inheritance
until they were declared heirs,
their rights were, therefore,
uncertain.
10. RESPONDENT’S CONTENTION:
Under Article 1043 of the Civil Code there
is no need for a person to be first
declared as heir before he can accept or
repudiate an inheritance. What is
required is that he must first be certain of
the death of the person from whom he is
to inherit and that he must be certain of
his right to the inheritance. He points out
that at the time of the signing of the
waiver document on July 31, 1967, the
signatories to the waiver document were
certain that Vito Borromeo was already
dead as well as of their rights to the
inheritance as shown in the waiver
document itself.
11. On December 24, 1974, the trial court
concluding that the five declared heirs
who signed the waiver agreement
assigning their hereditary rights to
Fortunato Borromeo had lost the same
rights, declared the latter as entitled to
5/9 of the estate of Vito Borromeo.
ISSUE: Whether or not the Waiver of Hereditary
Rights executed in 7/31/1967 is valid as to entitle
Fortunato to the estate of Vito?
RULING: YES
 The heirs could waive their hereditary rights
in 1967 even if the order to partition the estate
was issued only in 1969.
- In Osorio v. Osorio and Ynchausti
Steamship Co., the Court held: The
properties included in an existing
inheritance cannot be considered as
belonging to third persons with respect to
the heirs, who by fiction of law continue
the personality of the former.
- Nor do such properties have the character
of future property, because the heirs
acquire a right to succession from the
moment of the death of the deceased
(Article 657 and applied by Article 661),
the heirs succeed the deceased by the
mere fact of death. More or less, time
may elapse from the moment of the death
of the deceased until the heirs enter into
possession of the hereditary property, but
the acceptance in any event retroacts
to the moment of the death (Article 989).
The right is vested, although
conditioned upon the adjudication of
the corresponding hereditary portion.
 However, the purported "Waiver of
Hereditary Rights" cannot be considered to
be effective.
- For a waiver to exist, three elements are
essential: (1) the existence of a right
 - ; (2) the knowledge of the existence Tomas and Amelia Borromeo all her
thereof; and (Patrocinio B. Herrera's) rights, interests,
- (3) an intention to relinquish such right. and participation as an intestate heir in the
estate of the deceased Vito Borromeo.

(4) On June 29, 1968, the respondent

- The intention to waive a right or advantage
must be shown clearly and convincingly,
and when the only proof of intention rests
in what a party does, his act should be so
manifestly consistent with, and indicative
of an intent to, voluntarily relinquish the
particular right or advantage that no other
reasonable explanation of his conduct is
possible.
Tomas, and Amelia Borromeo (assignees
in the deed of assignment) in turn
executed a Deed of Reconveyance in
favor of the heirs-assignors named in the
same deed of assignment. The stated
consideration was P50,000.00;
(5) A Cancellation of Deed of Assignment
and Deed of Reconveyance was signed
by Tomas Borromeo and Amelia
Borromeo on October 15, 1968, while
Fortunato Borromeo signed this document
on March 24, 1969.

 The circumstances of this case that the

signatories to the waiver document did not
have the clear and convincing intention to
relinquish their rights, Thus:

(1) On October 27, 1967, Fortunato,

Tomas, and Amelia Borromeo filed a
pleading entitled "Compliance" wherein
they submitted a proposal for the amicable
settlement of the case. In this document,
the respondent recognizes and concedes
that the petitioner is an heir of the
deceased Vito Borromeo, entitled to share
in the estate. This shows that the "Waiver
of Hereditary Rights" was never meant to
be what the respondent purports it to be.
Had the intent been otherwise, there
would not be any reason for Fortunato,
Tomas, and Amelia Borromeo to mention
the heirs in the offer to settle the case
amicably, and offer to concede to them
parts of the estate of the deceased

(2) On April 21 and 30, 1969, the majority

of the declared heirs executed an
Agreement on how the estate they
inherited shall be distributed. The
Agreement of Partition was approved by
the trial court on August 15, 1969.

(3) On June 29, 1968, the petitioner

signed a document entitled Deed of
Assignment purporting to transfer and
assign in favor of the respondent and
 ELOY IMPERIAL
vs.
COURT OF APPEALS, REGIONAL TRIAL COURT
OF LEGASPI CITY, CESAR VILLALON, JR., TERESA
VILLALON, ANTONIO VILLALON, AUGUSTO
VILLALON, ROBERTO VILLALON, RICARDO
VILLALON and ESTHER VILLALON
G.R. No. 112483 October 8, 1999
GONZAGA-REYES, J.:
Digested by: EJ Claros (Art. 1051 and 1053)
FACTS:
1. Leoncio Imperial was the registered
owner of a 32,837-square meter parcel
of land covered by Original Certificate of
Title No. 200, also known as Lot 45 of the
Cadastral Survey of Albay.
2. On July 7, 1951, Leoncio sold the said lot
for P1.00 to his acknowledged natural
son, petitioner herein, who then
acquired title over the land and
proceeded to subdivide it into several
lots.
3. Petitioner and private respondents
admit that despite the contract's
designation as one of "Absolute Sale",
the transaction was in fact a donation.
4. On July 28, 1953, or barely two years
after the donation, Leoncio filed a
complaint for annulment of the said
Deed of Absolute Sale, docketed as Civil
Case No. 1177, in the then Court of First
Instance of Albay, on the ground that he
was deceived by petitioner herein into
signing the said document.
5. The dispute, however, was resolved
through a compromise agreement,
approved by the Court of First Instance
of Albay on November 3, 1961 3, under
which terms:
(1) Leoncio recognized the legality
and validity of the rights of
petitioner to the land donated;
and
(2) petitioner agreed to sell a
designated 1,000-square meter
portion of the donated land, and
to deposit the proceeds thereof
in a bank, for the convenient
disposal of Leoncio.
6. In case of Leoncio's death, it was agreed
that the balance of the deposit will be
withdrawn by petitioner to defray burial
costs.
7. On January 8, 1962, and pending
execution of the above judgment,
Leoncio died, leaving only two heirs —
the herein petitioner, who is his
acknowledged natural son, and an
adopted son, Victor Imperial.
8. On March 8, 1962, Victor was
substituted in place of Leoncio in the
abovementioned case, and it was he
who moved for execution of judgment.
On March 15, 1962, the motion for
execution was duly granted.
9. Fifteen years thereafter, or on July 26,
1977, Victor died single and without
issue, survived only by his natural father,
Ricardo Villalon, who was a lessee of a
portion of the disputed land.
10. Four years hence, or on September 25,
1981, Ricardo died, leaving as his only
heirs his two children, Cesar and Teresa
Villalon.
11. Five years thereafter, or sometime in
1986, Cesar and Teresa filed a complaint
for annulment of the donation with the
Regional Trial Court of Legazpi City,
docketed as Civil Case No. 7646.
 12. Petitioner moved to dismiss on the
ground of res judicata, by virtue of the
compromise judgment rendered by the
Court of First Instance of Albay.
13. The trial court granted the motion to
dismiss, but the Court of Appeals
reversed the trial court's order and
remanded the case for further
proceedings.
ISSUE: Whether there is a renunciation of
legitime that may be presumed in the case.
RULING: No.
No renunciation of legitime may be presumed
from the foregoing acts. It must be remembered
that at the time of the substitution, the
judgment approving the compromise agreement
has already been rendered. Victor merely
participated in the execution of the compromise
judgment.
He was not a party to the compromise
agreement.
More importantly, our law on succession does
not countenance tacit repudiation of
inheritance. Rather, it requires an express act on
the part of the heir. Thus, under Article 1051 of
Civil Code:
The repudiation of an inheritance shall
be made in a public or authentic
instrument, or by petition presented to
the court having jurisdiction over the
testamentary or intestate proceedings.
Thus, when Victor substituted Leoncio in Civil
Case No. 1177 upon the latter's death, his act of
moving for execution of the compromise
judgment cannot be considered an act of
renunciation of his legitime. He was, therefore,
not precluded or estopped from subsequently
seeking the reduction of the donation, under
Article 772.
Nor are Victor's heirs, upon his death, precluded
from doing so, as their right to do so is expressly
recognized under Article 772, and also in Article
1053. If the heir should die without having
accepted or repudiated the inheritance, his right
shall be transmitted to his heirs.
A final word on collation of donations. We
observe that after finding the donation to be
inofficious because Leoncio had no other
property at the time of his death, the RTC
computed the legitime of Victor based on the
area of the donated property.
Hence, in its dispositive portion, it awarded a
portion of the property to private respondents
as Victor's legitime. This was upheld by the
Court of Appeals.
Our rules of succession require that before any
conclusion as to the legal share due to a
compulsory heir may be reached, the following
steps must be taken:
(1) the net estate of the decedent must
be ascertained, by deducting all the
payable obligations and charges from
the value of the property owned by the
deceased at the time of his death;
(2) the value of all donations subject to
collation would be added to it.
Thus, it is the value of the property at the time
it is donated, and not the property itself, which
is brought to collation. Consequently, even
when the donation is found inofficious and
reduced to the extent that it impaired Victor's
legitime, private respondents will not receive a
corresponding share in the property donated.
Thus, in this case where the collatable property
is an immovable, what may be received is:
 (1) an equivalent, as much as possible,
in property of the same nature, class
and quality;
(2) if such is impracticable, the
equivalent value of the impaired
legitime in cash or marketable
securities; or
(3) in the absence of cash or securities
in the estate, so much of such other
property as may be necessary, to be
sold in public auction.
TSN: IMPERIAL V. CA G.R. No. 112483. October
8, 1999
FACTS: During his lifetime, LEONCIO sold a
parcel of land to his SON, but it was alleged that
it was actually a donation, not a sale.
Later on, LEONCIO himself filed a complaint for
the annulment of that sale on the ground that,
allegedly, he was deceived into signing a
document.
And then later on, there was a compromise
agreement between LEONCIO and the
DEFENDANT.
While it is a compromised agreement, if it is
approved by the court, it actually becomes the
judgment of the court, so the parties to the
compromise agreement must comply;
otherwise, anyone of them who is aggrieved
can file a motion for execution of the
compromise agreement.
Pending the execution of the judgment on the
compromise agreement, Leoncio died, and he
left 2 heirs: his NATURAL SON, and the
ADOPTED SON, VICTOR.
VICTOR was substituted in place of LEONCIO in
that case, and it was VICTOR who moved for the
execution of the said compromise agreement.
VICTOR died single, and was survived by1 CESAR
and TERESA.
CESAR and TERESA filed a complaint for the
nullification of the deed of sale, katong same
deed of sale, which was the subject of the case
filed by LEONCIO. The ground of CESAR and
TERESA in seeking for the nullification of the
Deed of Sale was that, it impairs the legitime of
their predecessor, VICTOR.
According to the DEFENDANT in that case,
[CESAR and TERESA] cannot anymore question
the deed of sale, because VICTOR himself,
during his lifetime, moved for the execution of
the compromise agreement, and the
compromise agreement ended that case
regarding also the same subject matter, [the
sale], so when VICTOR moved for the execution
of the compromise agreement, he impliedly
renounced his legitime according to the
DEFENDANTS, so there is no more legitime to
talk about here— no legitime that is impaired
because VICTOR already renounced his legitime
by moving for the execution of the Compromise
Agreement.
ISSUE: Was the act of VICTOR in moving for the
1 (his NATURAL FATHER, so daghan ni’ng
namatay, etc,. so later on ang nabilin na lang
iyang other heirs,)
execution of the compromise agreement
equivalent to a repudiation of his legitime?
HOLDING: No. Under the Law, there is no such
thing as implied repudiation.
Ang sa acceptance, naa: You have
[1] tacit acceptance, and
[2] presumed acceptance.
Now, under the law, Article 1051, there are only
2 ways:
[1] in a public or authentic document, or
[2]by a petition presented to the court.
So, the SC said2 that: “VICTOR’s act of moving
for execution of the compromise agreement
cannot be considered an act of repudiation of
his legitime. Our law on Succession does not
countenance tacit repudiation of inheritance. It
requires an express act on the part of the heir.”
Just remember: There are only 2 ways to
repudiate an inherence, and there is no such
thing as implied or tacit repudiation.