Page 1 of 16
Republic of the Philippines Same; Evidence; Evidence aliunde has no probative value.—Of course, Mrs.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE
PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA,
TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA
ESCOBAR DE FAUSTO, respondents-appellees.
Settlement of Estate; Will of Testator is the first and principal law in the
matter of Testaments.—The will of the testator is the first and principal law in the
matter of testaments. When his intention is clearly and precisely expressed, any
interpretation must be in accord when it may certainly appear that his intention
was different from that literally expressed (In re Estate of Caldero, 26 Phil. 237-8).
Same; Same.—One canon in the interpretation of the testamentary
provisions is that “the testator’s intention is to be ascertained from the words of
the will, taking into consideration the circumstances as this intention” (Art. 789,
Civil Code of the Philippines).
Same; A bequest of land to the nearest male relative of the grantor who would
study for the priesthood construed to mean the grantor’s nearest male relative living
at the time of his death and not any indefinite time thereafter.—We hold that the
said bequest refers to the testator’s nearest male relative living at the time of his
death and not to any indefinite time thereafter. “In order to be capacitated to
inherit, the heir, devisee or legatee must be living at the moment the succession
opens, except in case of representation, when it is proper.” The said testamentary
provisions should be sensibly or reasonably construed. To construe them as
referring to the testator’s nearest male relative at any time after his death would
render the provisions difficult to apply and create uncertainty as to the disposition
of his estate. That could not have been his intention.
Same; Same.—In 1935, when the testator died, his nearest legal heirs were
his three sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs.
Quiambao. Obviously, when the testator specified his nearest male relative, he
must have had in mind his nephew or a son of his sister, who would be his third-
degree relative, or possibly a grandnephew. But since he could not prognosticate
the exact date of his death or state with certitude what category of nearest male
relative would be living at the time of his death, he could not specify that his
nearest male relative would be his nephew or grandnephew (the son of his
nephew or niece) and so he had to use the term “nearest male relative.”
Gamalinda’s affidavit, which is tantamount to evidence aliunde as to the testator’s
intention and which is hearsay, has no probative value. Our opinion that the said
bequest refers to the testator’s nephew who was living at the time of his death,
when his succession was opened and the successional rights to his estate became
vested, rests on a judicious and unbiased reading of the terms of the will.
Same; As the testator was not survived by a nephew who became a priest the
bequest became inoperative and the administration of the ricelands of the parish
priest of Victoria, Tarlac also became inoperative.—Inasmuch as the testator was
not survived by any nephew who became a priest, the unavoidable conclusion is
that the bequest in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as envisaged in the
will, was likewise inoperative.
Same; Where the parish priest of Victoria, Tarlac, could, under the bequest,
become a trustee only when any of the testator’s nephews living at the time of his
death had not yet entered the seminary or being a priest was excommunicated, and
these contingencies never arose, said parish priest cannot be deemed a substitute
devisee.—The appellant in contending that a public charitable trust was
constituted by the testator in his favor assumes that he was a trustee or substitute
devisee. That contention is untenable. A reading of the testamentary provisions
regarding the disputed bequest does not support the view that the parish priest of
Victoria was a trustee or a substitute devisee in the event that the testator was not
survived by a nephew who became a priest. It should be underscored that the
parish priest of Victoria could become a trustee only when the testator’s nephew
living at the time of his death, who desired to become a priest, had not yet entered
the seminary or, having been ordained a priest, he was excommunicated. Those
two contingencies did not arise, and could not have arisen, in this case because no
nephew of the testator manifest any intention to enter the seminary or ever
became a priest.
Same; Where a bequest is inoperative the same shall be merged, as a rule, to
the testator’s estate.—The Court of Appeals correctly ruled that this case is covered
by article 888 of the Old Civil Code, now Article 956, which provides that if “the
bequest for any reason should be inoperative, it shall be merged into the estate,
except in cases of substitution and those in which the right of accretion exists.” (el
legado x x x por qualquier causa, no tenga efecto, se refundira en la masa de la
herencia, fuera, de los cases de sustitucion y derecho de acrecer”).
Same; A person may die partly testate and partly intestate.—The Civil Code
recognizes that a person may die partly testate and partly intestate, or that there
may be mixed succession. The old rule as to the indivisibility of the testator’s will
is no longer valid. Thus, if a conditional legacy does not take effect, there will be
intestate succession as to the property covered by the said legacy (Macrahon Ong
Ham vs. Saavedra, 51 Phil. 267).
D. Tañedo, Jr. for appellants.
 Page 2 of 16

J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability of a devise of ricelands
located at Guimba, Nueva Ecija, with a total area of around forty- four hectares
That devise was made in the will of the late Father Pascual Rigor, a native of
Victoria Tarlac, in favor of his nearest male relative who would study for the
priesthood.
The parish priest of Victoria, who claimed to be a trustee of the said lands,
appealed to this Court from the decision of the Court of Appeals affirming the
order of the probate court declaring that the said devise was inoperative (Rigor vs.
Parish Priest of the Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-
R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died
on August 9, 1935, leaving a will executed on October 29, 1933 which was
probated by the Court of First Instance of Tarlac in its order of December 5, 1935.
Named as devisees in the will were the testators nearest relatives, namely, his
three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-
Quiambao. The testator gave a devise to his cousin, Fortunato Gamalinda.
derecho de administrar y gozar de este legado al dejar de continuar sus
estudios para ordenarse de Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada añ o
VEINTE (20) Misas rezadas en sufragio de mi alma y de mis padres difuntos, y
si el actual legatario, quedase excomulgado, IPSO FACTO se le despoja este
legado, y la administracion de esto pasara a cargo del actual Parroco y sus
sucesores de la Iglecia Catolica de Victoria, Tarlac.
Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba
queda expresado, pasara la administracion de este legado a cargo del actual
Parroco Catolico y sus sucesores, de Victoria, Tarlac.
El Parroco administrador de estate legado, acumulara, anualmente todos los
productos que puede tener estate legado, ganando o sacando de los productos
anuales el CINCO (5) por ciento para su administracion, y los derechos
correspondientes de las VEINTE (20) Misas rezadas que debiera el Parroco
celebrar cada añ o, depositando todo lo restante de los productos de estate
legado, en un banco, a nombre de estate legado.
To implement the foregoing bequest, the administratix in 1940 submitted a
project containing the following item:

In addition, the will contained the following controversial bequest (paragraphing 5. LEGACY OF THE CHURCH
supplied to facilitate comprehension of the testamentary provisions):
That it be adjudicated in favor of the legacy purported to be given to the
Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados nearest male relative who shall take the priesthood, and in the interim to
en el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA, cuyo num. de be administered by the actual Catholic Priest of the Roman Catholic
CERTIFICADO DE TRANSFERENCIA DE TITULO SON; — Titulo Num. 6530, Church of Victoria, Tarlac, Philippines, or his successors, the real
mide 16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m. properties hereinbelow indicated, to wit:
cuadrados de superficie y annual 6525, mide 62,665 m. cuadrados de
superficie; y Titulo Num. 6521, mide 119,251 m. cuadrados de superficie; “Title No. Lot No. Area in Has. Tax Dec. Ass. Value
a cualquier pariente mio varon mas cercano que estudie la carrera eclesiatica
hasta ordenarse de Presbiterado o sea Sacerdote; las condiciones de estate T-6530 3663 1.6249 18740 P340.00
legado son; T-6548 3445-C 24.2998 18730 7,290.00
T-6525 3670 6.2665 18736 1,880.00
(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de T-6521 3666 11.9251 18733 3,580.00
este legado; “Total area and value— 44.1163   P13,090.00”

(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a Judge Roman A. Cruz in his order of August 15, 1940, approving the project of
gozar y administrar de este legado al principiar a curzar la Sagrada Teologio, y partition, directed that after payment of the obligations of the estate (including the
ordenado de Sacerdote, hasta su muerte; pero que pierde el legatario este sum of P3,132.26 due to the church of the Victoria parish) the administratrix
should deliver to the devisees their respective shares.

It may be noted that the administratrix and Judge Cruz did not bother to analyze
the meaning and implications of Father Rigor's bequest to his nearest male
relative who would study for the priesthood. Inasmuch as no nephew of the
testator claimed the devise and as the administratrix and the legal heirs believed
that the parish priest of Victoria had no right to administer the ricelands, the same
were not delivered to that ecclesiastic. The testate proceeding remained pending.
About thirteen years after the approval of the project of partition, or on February
19, 1954, the parish priest of Victoria filed in the pending testate proceeding a
petition praying for the appointment of a new administrator (succeeding the
deceased administration Florencia Rigor), who should deliver to the church the
said ricelands, and further praying that the possessors thereof be ordered to
render an accounting of the fruits. The probate court granted the petition. A new
administrator was appointed. On January 31, 1957 the parish priest filed another
petition for the delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25, 1957
praying that the bequest be d inoperative and that they be adjudged as the persons
entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no
nearest male relative of" the testator "has ever studied for the priesthood" (pp. 25
and 35, Record on Appeal). That petition was opposed by the parish priest of
Victoria.
Finding that petition to be meritorious, the lower court, through Judge Bernabe de
Aquino, declared the bequest inoperative and adjudicated the ricelands to the
testator's legal heirs in his order of June 28, 1957. The parish priest filed two
motions for reconsideration.
Judge De Aquino granted the respond motion for reconsideration in his order of
December 10, 1957 on the ground that the testator had a grandnephew named
Edgardo G. Cunanan (the grandson of his first cousin) who was a seminarian in the
San Jose Seminary of the Jesuit Fathers in Quezon City. The administrator was
directed to deliver the ricelands to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It held that
Father Rigor had created a testamentary trust for his nearest male relative who
would take the holy orders but that such trust could exist only for twenty years
because to enforce it beyond that period would violate "the rule against
perpetuities. It ruled that since no legatee claimed the ricelands within twenty
years after the testator's death, the same should pass to his legal heirs, citing
articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil Code.
Page 3 of 16
The parish priest in this appeal contends that the Court of Appeals erred in not
finding that the testator created a public charitable trust and in not liberally
construing the testamentary provisions so as to render the trust operative and to
prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals d the bequest
inoperative because no one among the testator's nearest male relatives had
studied for the priesthood and not because the trust was a private charitable trust.
According to the legal heirs, that factual finding is binding on this Court. They
point out that appellant priest's change of theory cannot be countenanced in this
appeal .
In this case, as in cases involving the law of contracts and statutory construction,
where the intention of the contracting parties or of the lawmaking body is to be
ascertained, the primary issue is the determination of the testator's intention
which is the law of the case (dicat testor et erit lex. Santos vs. Manarang, 27 Phil.
209, 215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of testaments.
When his intention is clearly and precisely expressed, any interpretation must be
in accord with the plain and literal meaning of his words, except when it may
certainly appear that his intention was different from that literally expressed (In
re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of wills." It is "the
life and soul of a will It is "the first greatest rule, the sovereign guide, the polestar,
in giving effect to a will". (See Dissent of Justice Moreland in Santos vs. Manarang,
27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the
testator's intention is to be ascertained from the words of the wilt taking into
consideration the circumstances under which it was made", but excluding the
testator's oral declarations as to his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be useful to make the following re-
statement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male relatives who
would pursue an ecclesiastical career until his ordination as a priest.
2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy
and administer the ricelands, and once ordained as a priest, he could continue
enjoying and administering the same up to the time of his death but the devisee
would cease to enjoy and administer the ricelands if he discontinued his studies
for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate every
year twenty masses with prayers for the repose of the souls of Father Rigor and
his parents.
5. That if the devisee is excommunicated, he would be divested of the legacy and
the administration of the riceland would pass to the incumbent parish priest of
Victoria and his successors.
6. That during the interval of time that there is no qualified devisee as
contemplated above, the administration of the ricelands would be under the
responsibility of the incumbent parish priest of Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would accumulate annually
the products thereof, obtaining or getting from the annual produce five percent
thereof for his administration and the fees corresponding to the twenty masses
with prayers that the parish priest would celebrate for each year, depositing the
balance of the income of the devise in the bank in the name of his bequest.
From the foregoing testamentary provisions, it may be deduced that the testator
intended to devise the ricelands to his nearest male relative who would become a
priest, who was forbidden to sell the ricelands, who would lose the devise if he
discontinued his studies for the priesthood, or having been ordained a priest, he
was excommunicated, and who would be obligated to say annually twenty masses
with prayers for the repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the
ricelands only in two situations: one, during the interval of time that no nearest
male relative of the testator was studying for the priesthood and two, in case the
testator's nephew became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya legatario
acondicionado", or how long after the testator's death would it be determined that
he had a nephew who would pursue an ecclesiastical vocation. It is that patent
ambiguity that has brought about the controversy between the parish priest of
Victoria and the testator's legal heirs.
Page 4 of 16
Interwoven with that equivocal provision is the time when the nearest male
relative who would study for the priesthood should be determined. Did the testator
contemplate only his nearest male relative at the time of his death? Or did he have
in mind any of his nearest male relatives at anytime after his death?
We hold that the said bequest refers to the testator's nearest male relative living
at the time of his death and not to any indefinite time thereafter. "In order to be
capacitated to inherit, the heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is proper" (Art. 1025,
Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To
construe them as referring to the testator's nearest male relative at anytime after
his death would render the provisions difficult to apply and create uncertainty as
to the disposition of his estate. That could not have been his intention.
In 1935, when the testator died, his nearest leagal heirs were his three sisters or
second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao.
Obviously, when the testator specified his nearest male relative, he must have had
in mind his nephew or a son of his sister, who would be his third-degree relative,
or possibly a grandnephew. But since he could not prognosticate the exact date of
his death or state with certitude what category of nearest male relative would be
living at the time of his death, he could not specify that his nearest male relative
would be his nephew or grandnephews (the son of his nephew or niece) and so he
had to use the term "nearest male relative".
It is contended by the legal heirs that the said devise was in reality intended for
Ramon Quiambao, the testator's nephew and godchild, who was the son of his
sister, Mrs. Quiambao. To prove that contention, the legal heirs presented in the
lower court the affidavit of Beatriz Gamalinda, the maternal grandmother of
Edgardo Cunanan, who deposed that after Father Rigor's death her own son,
Valentin Gamalinda, Jr., did not claim the devise, although he was studying for the
priesthood at the San Carlos Seminary, because she (Beatriz) knew that Father
Rigor had intended that devise for his nearest male relative beloning to the Rigor
family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan,
was not the one contemplated in Father Rigor's will and that Edgardo's father told
her that he was not consulted by the parish priest of Victoria before the latter filed
his second motion for reconsideration which was based on the ground that the
testator's grandnephew, Edgardo, was studying for the priesthood at the San Jose
Seminary.

Parenthetically, it should be stated at this juncture that Edgardo ceased to be a
seminarian in 1961. For that reason, the legal heirs apprised the Court of Appeals
that the probate court's order adjudicating the ricelands to the parish priest of
Victoria had no more leg to stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as
to the testator's intention and which is hearsay, has no probative value. Our
opinion that the said bequest refers to the testator's nephew who was living at the
time of his death, when his succession was opened and the successional rights to
his estate became vested, rests on a judicious and unbiased reading of the terms of
the will.
Had the testator intended that the "cualquier pariente mio varon mas cercano que
estudie la camera eclesiatica" would include indefinitely anyone of his nearest
male relatives born after his death, he could have so specified in his will He must
have known that such a broad provision would suspend for an unlimited period of
time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya legatario
acondicionado"? The reasonable view is that he was referring to a situation
whereby his nephew living at the time of his death, who would like to become a
priest, was still in grade school or in high school or was not yet in the seminary. In
that case, the parish priest of Victoria would administer the ricelands before the
nephew entered the seminary. But the moment the testator's nephew entered the
seminary, then he would be entitled to enjoy and administer the ricelands and
receive the fruits thereof. In that event, the trusteeship would be terminated.
Following that interpretation of the will the inquiry would be whether at the time
Father Rigor died in 1935 he had a nephew who was studying for the priesthood
or who had manifested his desire to follow the ecclesiastical career. That query is
categorically answered in paragraph 4 of appellant priest's petitions of February
19, 1954 and January 31, 1957. He unequivocally alleged therein that "not male
relative of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp.
25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest,
the unavoidable conclusion is that the bequest in question was ineffectual or
inoperative. Therefore, the administration of the ricelands by the parish priest of
Victoria, as envisaged in the wilt was likewise inoperative.
The appellant in contending that a public charitable trust was constituted by the
testator in is favor assumes that he was a trustee or a substitute devisee That
Page 5 of 16
contention is untenable. A reading of the testamentary provisions regarding the
disputed bequest not support the view that the parish priest of Victoria was a
trustee or a substitute devisee in the event that the testator was not survived by a
nephew who became a priest.
It should be understood that the parish priest of Victoria could become a trustee
only when the testator's nephew living at the time of his death, who desired to
become a priest, had not yet entered the seminary or, having been ordained a
priest, he was excommunicated. Those two contingencies did not arise, and could
not have arisen in this case because no nephew of the testator manifested any
intention to enter the seminary or ever became a priest.
The Court of Appeals correctly ruled that this case is covered by article 888 of the
old Civil Code, now article 956, which provides that if "the bequest for any reason
should be inoperative, it shall be merged into the estate, except in cases of
substitution and those in which the right of accretion exists" ("el legado ... por
qualquier causa, no tenga efecto se refundira en la masa de la herencia, fuera de
los casos de sustitucion y derecho de acrecer").
This case is also covered by article 912(2) of the old Civil Code, now article 960
(2), which provides that legal succession takes place when the will "does not
dispose of all that belongs to the testator." There being no substitution nor
accretion as to the said ricelands the same should be distributed among the
testator's legal heirs. The effect is as if the testator had made no disposition as to
the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly intestate,
or that there may be mixed succession. The old rule as to the indivisibility of the
testator's win is no longer valid. Thus, if a conditional legacy does not take effect,
there will be intestate succession as to the property recovered by the said legacy
(Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate Court's decision is affirmed. Costs
against the petitioner.
SO ORDERED
Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and
Santos, JJ., concur.
Abad Santos, J., took no part.

G.R. No. L-32344             March 31, 1930
VIVENCIO LEGASTO, special administrator of the Intestate estate of Sabina
Almadin, plaintiff-appellee,
vs.
MARIA VERZOSA, ET AL, defendants-appellants.
PARTITION "INTER VIVOS;" WHERE WILL VOID.—The partition made by a
testator inter vivos in pursuance of a will which has been disallowed is null and
void.
DONATION OF REALTY, NULL AND VOID.—The gift of realty made in a public
instrument is null and void when the deed fails to show the acceptance, or where
the formal notice of the acceptance, made in a separate instrument, is either not
given to the donor or else not noted in the deed of gift and in the separate
acceptance.
VILLA-REAL, J.:
This is an appeal taken by the defendants, Maria Verzosa et al., from the judgment
of the Court of First Instance of Laguna, the dispositive part whereof is as follows:
Wherefore, the court hereby orders the defendants to deliver to the plaintiff, as
administrator of the estate of Sabina Almadin, the parcels of land described in
paragraph 7 of this amended complaints (reply) dated January 5, 1929, as said
paragraph is amended on pages, excluding the lots described in certificates to
title Nos. 6557, 6558 and 6559 of the Laguna registry of deeds, which are hereby
declared to be the absolute property of Victoria Verzosa, wife to Jose Carasco.
Without express pronouncement as to costs.
In support of their appeal, the appellants assign the following alleged errors as
committed by the court below in its decision, to wit:
1. he court below erred in ordering the defendants to make delivery of the
property in litigation to the plaintiff as special administrator of the decedent
Sabina Almadin's intestate estate.
2. The court below erred in holding that public instruments 2, 31, 42, and 73, are
deeds of gift of the property in litigation made by Sabina Almadin to the
defendants.
Page 6 of 16
3. The court below erred in holding that said donation is void per se, inasmuch
as it does not appear upon said documents that the defendants accepted and
acknowledged it acceptance to the donor, Sabina Almadin.
4. The court below erred in denying the defendants' motion for a new trial.
5. The court below erred in failing to hold that the defendants are the sole and
lawful owners of the property in litigation.
The relevant facts proved at the trial which are essential to the solution of the
questions raised by the instant appeal are as follows:
On May 13, 1925, Sabina Almadin executed a will (Exhibit A-2), devising certain
parcels of land belonging to her, to her four nieces, Maria Verzosa, Oliva Verzosa,
Toribia Verzosa, and Ruperta Palma, daughters of her sister Catalina Almadin,
designating the parcels to be given to each.
On August 8, 1925, Sabina Almadin partitioned her property among her aforesaid
sister and nieces, executing a deed to her niece, Maria Verzosa, assigning and
making over to her three parcels of her land therein described (Exhibit 2). On
September 23, 1925, Maria Verzosa and Sabina Almadin appeared before the
deputy provincial assessor and municipal secretary of Biñ an, Laguna, and made
two sworn statements, Exhibits 3 and 5, wherein the former stated that she had
purchased the parcels of land described in the assignment Exhibit 2, from Sabina
Almadim, and the latter in turn declared that she had sold them to Maria Verzosa,
and that said vendee had already claimed them as her property for the payment of
the land tax.
On the same day, August 8, 1925, Sabina Almadin executed a deed (Exhibit 31) in
favor of her niece Oliva Verzosa, assigning to her two parcels of land described in
said instrument, and on October 14, 1925, assignor and assignee appeared before
the aforesaid deputy provincial assessor and municipality secretary of Biñ an,
Laguna, and subscribed two sworn statements (Exhibits 32 and 34), the former
stating that she had sold the two parcels of land described in the deed of
assignment, Exhibit 31, to the latter, and the latter in turn stating that she had
purchased of the former the same parcels of land, the ownership of which has
already been claimed by Oliva Verzosa by a tax declaration in her own name on
September 25, and October 13, 1925, respectively.
On the said day August 8, 1925, Sabina Almadin executed a deed, Exhibit 45, in
favor of her niece Toribia Verzosa, assigning to her the four parcels of land therein
described; and September 23, 1923, assignor and assignee appeared before the
aforesaid deputy provincial assessor and municipal secretary of Biñ an, Laguna,

and subscribed a sworn statement, Exhibit 48, the former stating that she has sold
to Toribia Verzosa the parcel of land described therein (Exhibit 45), bearing tax
registry No. 9765, and the latter stating that she had purchased said parcel of the
former and declared it to be her own property for the payment of the land tax.
Again on the said day, August 8, 1925, Sabina Almadin executed a deed (Exhibit
73) to her niece Ruperta Palma assigning to her three parcels of land described
therein; and on September 23, 1925, assignor and assignee appeared before the
deputy provincial assessor and municipal secretary of Biñ an, Laguna, and
subscribed two sworn statements (Exhibit 74 and 76) wherein the former stated
that she had sold to the latter the parcels of land described in the deed of
assignment (Exhibit 73) and the latter stated that she had purchased said parcels
of the former, and had declared them to be her own property for the payment of
the land tax (Exhibits 75 and 77).
The assignees, Maria Verzosa, Toribia Verzosa, Oliva Verzosa, and Ruperta Palma,
took possession of their respective parcels thus ceded by Sabina Almadin, and
have to this day been cultivating them as exclusive owners thereof.
Sabina Almadin passed away on February 22, 1926 and on March 12th the same
year, her sister, Catalina Almadin, presented by Attorney Federico Marino,
propounded her will, Exhibit A-2, mentioned above, for probate. By virtue of the
decision rendered by the Court of First Instance of Laguna on December 22, 1926
(Exhibit A-4), affirmed by this court on appeal (Exhibit D), said will was not
admitted to probate.1 Vivencio Legasto, then, the special administrator appointed
by said Court of First Instance of Laguna to take charge of Sabina Almadin's estate,
filed the complaint which originated this case, claiming the delivery of the parcels
of land described in paragraph 7 of this aforesaid complaint as amended. The first
question to decide in the instant appeal is whether the partition made by Sabina
Almadin of her property among her nieces, the defendants and appellants herein,
was valid enforceable.
Article 1056 of the Civil Code Provides:
ART. 1056. If the testator should make a partition of his property by an act
inter vivos, or by will, such partition shall stand in so far as it does not
prejudice the legitime of the forced heirs.
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down
the following doctrine:
Considering that the language of article 1056 cannot be interpreted to mean that
a person may, by acts inter vivos, partition his property referred to in the section
Page 7 of 16
wherein said article is found, without the authority of a testament containing an
expression of his last will, or the authority of law, for, otherwise, a partition thus
made would be tantamount to making a will in a manner not provided for,
authorized, nor included in the chapter referring to testaments, and especially,
to the forms thereof, which is entirely different from the legal consequences of a
free disposition made by parents during their lifetime, whereby they give to
their children the whole or a part of their property;
Considering that, inasmuch as the second paragraph of article 1271 makes
reference to the aforesaid article, in providing that no contracts may be entered
into with respect to future inheritances except those the object of which is to
make a division inter vivos of the estate in accordance with article 1056, it is
evident that said difference likewise leads to the conclusion that a partition thus
made should be on the basis of a testemantary or legal succession and should be
made a conformity with the fundamental rules thereof and the order of the heirs
entitled to the estate, because neither of the two provisions could be given a
wider meaning or scope than that they simply provide for the division of the
estate during the lifetime of the owner, which, otherwise, would have to be done
upon the death of the testator in order to carry into effect the partition of the
estate among the persons interested.
Manresa comments on the same article as follows:
A distinction must be made between the disposition of property and its division;
and the provision of article 1056 authorizing the testator to dispose of his
property by acts inter vivos or by last will, must be understood in accordance
with this distinction. The idea is to divide the estate among the heirs designated
by the testator. This designation constitutes the disposition of the properties to
take effect after his death, and said act must necessarily appear in the testament
because it is the expression of the testator's last will and must be surrounded by
appropriate formalities. Then comes the second part, to wit, the division in
conformity with that disposition, and the testator may make this division in the
same will or in another will, or by an act inter vivos. With these words the law, in
article 1056 as well as in article 1057, which we shall hereafter examine, makes
allusion to the forms or manner of making the partition and not to the effects
thereof, which means that, for the purposes of partition the formal solemnities
which must accompany every testament or last will are not necessary. Neither is
it necessary to observe the special formalities required in case of donations,
because it is not a matter of disposing gratuitously of properties, but of dividing
those which already have been legally disposed of.
It is thus seen that both the Spanish Supreme Court and the learned and
authoritative commentator, Manresa, are of opinion that a testator may, by an act
inter vivos, partition his property, but he must first make a will with all the

formalities provided for by law. And it could not be otherwise, for without a will
there can be no testator; when the law, therefore, speaks of the partition inter
vivos made by a testator of his property, it necessarily refers to that property
which he has devised to his heirs. A person who disposes of his property gratis
inter vivos in not called a testator, but a donor. In employing the word "testator,"
the law evidently desired to distinguish between the one who freely donates his
property in life and one who disposes of it by will to take effect his death.
Sabina Almadin must have been aware of the necessity of a prior will, since before
making the partition of her property among her nieces, the defendants herein, she
executed a will giving to each of them the same parcels of land which she later
transferred to them gratuitously.
Now, then, section 625 of the Code of Civil Procedure provides:
SEC. 625. Allowance necessary, and conclusive as to execution. — No will shall pass
either the real or personal estate, unless it is proved and allowed in the Court of
First Instance, or by appeal to the Supreme Court; and the allowance by the court
of a will of real and personal estate shall be conclusive as to its due execution.
As Sabina Almadin's will was disallowed for the reason that it did not contain all
the essential requisites provided by law for its validity, can the aforesaid partition
of her estate made by said testatrix among her nieces be deemed valid? Certainly
not; for it is an indispensable condition precedent to a testator partitioning his
estate inter vivos that he have made a valid will disposing of said estate among his
heirs; and if this will be declared null and void, the partition made by the testator
in pursuance of its provisions is likewise null and void, for where these provisions
cease to exist, the partition made in conformity therewith also becomes null and
void, as the cessation of the cause implies the cessation of the effect.
And since Sabina Almadin's will is null and void for lack of the legal requisites,
consequently, the partition which she made of her estate among her nieces the
defendants-appellants herein, during her lifetime is likewise null and void.
The second question to be decided is whether or not the conveyances made by
Sabina Almadin of the parcels of land in litigation, in favor of her nieces,
respectively, by virtue of the instruments Exhibits 2, 31, 47 and 73 can be
considered valid and enforceable.
Article 633 of the Civil Code provides that in order that a donation of real property
be valid, it must be made by public instrument, in which the property donated
must be specifically described, and that the acceptance may be made in the same
deed of gift or in a separate instrument, but in the latter case notice thereof should
Page 8 of 16
be given the donor in due form, and a note to that effect inserted in both
instruments.
There is no question that the documents Exhibits 2, 31, 42, and 73 contain all the
requisites for public instruments. However, they do not show the acceptance of the
respective donees.
It is contended that the sworn statements Exhibits 3, 5, 32, 34, 48, 74 and 76
signed by Sabina Almadin in which it appears that she has assigned to each of her
nieces, respectively, the parcels of land in litigation, and wherein each of said
nieces states that she has purchased the same parcels of land from her aunt Sabina
Almadin, constitute a gift and an acceptance at the same time.
But it appears that said sworn statements before a sale and not to a gift and
cannot, therefore, be considered as public instruments of gifts showing the
acceptance of the donees.
It is also contended that said sworn statements constitute separate deeds of
acceptance; but even if that were so, there is still lacking the legal requisite of
notification in due form to the donor of the donee's acceptance, and the annotation
thereof in the deed of gift and in the instrument of acceptance. The formal notice
calls for the agency of the same notary who authenticated the acceptance and he
should under his authority make the annotation of said notice, as indicated (5
Manresa, pp. 120, 121).
Furthermore, the aforesaid sworn statements are not deeds transferring title but
mere acknowledgments made under oath of the fact of the transfer, required by
the law in order that the provincial assessor may make the proper transfer of the
tax declarations of the vendor to the vendee, where the transfer has not been
recorded in the registry of deeds.
In view of all the foregoing, we are of opinion and so hold: (1) That the partition
made by a testator inter vivos in pursuance of a will which has been disallowed is
null and void; and (2) that the gift of realty made in a public instrument which fails
to show the acceptance, or wherein the formal notice of the acceptance is either
not given to the donor or else not noted in the deed of gift and in the separate
acceptance, is null and void.
Wherefore, finding no error in the judgment appealed from, the same is hereby
affirmed in its entirety, with costs against the appellants. So ordered.
Avanceña, C.J. Malcolm, Villamor, Ostrand and Johns, JJ., concur.

G.R. No. L-3404             April 2, 1951
ANGELA I. TUASON, plaintiff-appellant,
vs.
ANTONIO TUASON, JR., and GREGORIO ARANETA, INC., defendants-appellees.
COMMUNITY PROPERTY; PARTITION; RESCISSION.—A contract among land co-
owners wherein they agreed to fill their property, construct roads therein and
then subdivide it into small lots for sale, the proceeds to be later divided among
them, and to this end one of them was to finance the whole development and
subdivision, to prepare a schedule of prices and conditions of sale subject to the
approval of the other two co-owners, to sell the subdivided lots and execute the
corresponding contracts with buyers, and to receive 50 per cent of the gross
selling price of the lots and the rents that may be collected f rom the property
while in the process of sale, the remaining 50 per cent to be divided in equal
portions among the three co-owners,—does not violate article 400 of the Civil
Code. Far from violating the prohibition against a co-owner being obliged to
remain a party to the community, the contract precisely has for its purpose and
object the dissolution of the co-ownership and of the community by selling the
parcel held in common and dividing the proceeds of the sale among the co-owners.
The obligation imposed in the contract to preserve the co-ownership until all the
lots shall have been sold is a mere incident to the main object of dissolving the co-
ownership.
MONTEMAYOR, J.:
In 1941 the sisters Angela I. Tuason and Nieves Tuason de Barreto and their
brother Antonio Tuason Jr., held a parcel of land with an area of 64,928.6 sq. m.
covered by Certificate of Title No. 60911 in Sampaloc, Manila, in common, each
owning an undivided 1/3 portion. Nieves wanted and asked for a partition of the
common property, but failing in this, she offered to sell her 1/3 portion. The share
of Nieves was offered for sale to her sister and her brother but both declined to
buy it. The offer was later made to their mother but the old lady also declined to
buy, saying that if the property later increased in value, she might be suspected of
having taken advantage of her daughter. Finally, the share of Nieves was sold to
Gregorio Araneta Inc., a domestic corporation, and a new Certificate of Title No.
61721 was issued in lieu of the old title No. 60911 covering the same property.
The three co-owners agreed to have the whole parcel subdivided into small lots
and then sold, the proceeds of the sale to be later divided among them. This
agreement is embodied in a document (Exh. 6) entitled "Memorandum of
Agreement" consisting of ten pages, dated June 30, 1941.
Page 9 of 16
Before, during and after the execution of this contract (Exh. 6), Atty. J. Antonio
Araneta was acting as the attorney-in-fact and lawyer of the two co-owners,
Angela I. Tuason and her brother Antonio Tuason Jr. At the same time he was a
member of the Board of Director of the third co-owner, Araneta, Inc.
The pertinent terms of the contract (Exh. 6) may be briefly stated as follows: The
three co-owners agreed to improve the property by filling it and constructing
roads and curbs on the same and then subdivide it into small lots for sale. Araneta
Inc. was to finance the whole development and subdivision; it was prepare a
schedule of prices and conditions of sale, subject to the subject to the approval of
the two other co-owners; it was invested with authority to sell the lots into which
the property was to be subdivided, and execute the corresponding contracts and
deeds of sale; it was also to pay the real estate taxes due on the property or of any
portion thereof that remained unsold, the expenses of surveying, improvements,
etc., all advertising expenses, salaries of personnel, commissions, office and legal
expenses, including expenses in instituting all actions to eject all tenants or
occupants on the property; and it undertook the duty to furnish each of the two
co-owners, Angela and Antonio Tuason, copies of the subdivision plans and the
monthly sales and rents and collections made thereon. In return for all this
undertaking and obligation assumed by Araneta Inc., particularly the financial
burden, it was to receive 50 per cent of the gross selling price of the lots, and any
rents that may be collected from the property, while in the process of sale, the
remaining 50 per cent to be divided in equal portions among the three co-owners
so that each will receive 16.33 per cent of the gross receipts.
Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh. 6), for
purposes of reference we are reproducing them below:
(9) This contract shall remain in full force and effect during all the time that it
may be necessary for the PARTY OF THE SECOND PART to fully sell the said
property in small and subdivided lots and to fully collect the purchase prices due
thereon; it being understood and agreed that said lots may be rented while there
are no purchasers thereof;
(11) The PARTY OF THE SECOND PART (meaning Araneta Inc.) is hereby given
full power and authority to sign for and in behalf of all the said co-owners of said
property all contracts of sale and deeds of sale of the lots into which this property
might be subdivided; the powers herein vested to the PARTY OF THE SECOND
PART may, under its own responsibility and risk, delegate any of its powers
under this contract to any of its officers, employees or to third persons;
(15) No co-owner of the property subject-matter of this contract shall sell,
alienate or dispose of his ownership, interest or participation therein without

first giving preference to the other co-owners to purchase and acquire the same
under the same terms and conditions as those offered by any other prospective
purchaser. Should none of the co-owners of the property subject-matter of this
contract exercise the said preference to acquire or purchase the same, then such
sale to a third party shall be made subject to all the conditions, terms, and
dispositions of this contract; provided, the PARTIES OF THE FIRST PART
(meaning Angela & Antonio) shall be bound by this contract as long as the PARTY
OF THE SECOND PART, namely, the GREGORIO ARANETA, INC. is controlled by
the members of the Araneta family, who are stockholders of the said corporation
at the time of the signing of this contract and/or their lawful heirs;
On September 16, 1944, Angela I. Tuason revoked the powers conferred on her
attorney-in-fact and lawyer, J. Antonio Araneta. Then in a letter dated October 19,
1946, Angela notified Araneta, Inc. that because of alleged breach of the terms of
the "Memorandum of Agreement" (Exh. 6) and abuse of powers granted to it in the
document, she had decided to rescind said contract and she asked that the
property held in common be partitioned. Later, on November 20, 1946, Angela
filed a complaint in the Court of First Instance of Manila asking the court to order
the partition of the property in question and that she be given 1/3 of the same
including rents collected during the time that the same including rents collected
during the time that Araneta Inc., administered said property.
The suit was administered principally against Araneta, Inc. Plaintiff's brother,
Antonio Tuason Jr., one of the co-owners evidently did not agree to the suit and its
purpose, for he evidently did not agree to the suit and its purpose, for he joined
Araneta, Inc. as a co-defendant. After hearing and after considering the extensive
evidence introduce, oral and documentary, the trial court presided over by Judge
Emilio Peñ a in a long and considered decision dismissed the complaint without
pronouncement as to costs. The plaintiff appealed from that decision, and because
the property is valued at more than P50,000, the appeal came directly to this
Court.
Some of the reasons advanced by appellant to have the memorandum contract
(Exh. 6) declared null and void or rescinded are that she had been tricked into
signing it; that she was given to understand by Antonio Araneta acting as her
attorney-in-fact and legal adviser that said contract would be similar to another
contract of subdivision of a parcel into lots and the sale thereof entered into by
Gregorio Araneta Inc., and the heirs of D. Tuason, Exhibit "L", but it turned out that
the two contracts widely differed from each other, the terms of contract Exh. "L"
being relatively much more favorable to the owners therein the less favorable to
Araneta Inc.; that Atty. Antonio Araneta was more or less disqualified to act as her
legal adviser as he did because he was one of the officials of Araneta Inc., and
finally, that the defendant company has violated the terms of the contract (Exh. 6)
by not previously showing her the plans of the subdivision, the schedule of prices
Page 10 of 16
and conditions of the sale, in not introducing the necessary improvements into the
land and in not delivering to her her share of the proceeds of the rents and sales.
We have examined Exh. "L" and compared the same with the contract (Exh. 6) and
we agree with the trial court that in the main the terms of both contracts are
similar and practically the same. Moreover, as correctly found by the trial court,
the copies of both contracts were shown to the plaintiff Angela and her husband, a
broker, and both had every opportunity to go over and compare them and decide
on the advisability of or disadvantage in entering into the contract (Exh. 6); that
although Atty. Antonio Araneta was an official of the Araneta Inc.; being a member
of the Board of Directors of the Company at the time that Exhibit "6" was executed,
he was not the party with which Angela contracted, and that he committed no
breach of trust. According to the evidence Araneta, the pertinent papers, and sent
to her checks covering her receive the same; and that as a matter of fact, at the
time of the trial, Araneta Inc., had spent about P117,000 in improvement and had
received as proceeds on the sale of the lots the respectable sum of P1,265,538.48.
We quote with approval that portion of the decision appealed from on these
points:
The evidence in this case points to the fact that the actuations of J. Antonio
Araneta in connection with the execution of exhibit 6 by the parties, are above
board. He committed nothing that is violative of the fiduciary relationship
existing between him and the plaintiff. The act of J. Antonio Araneta in giving the
plaintiff a copy of exhibit 6 before the same was executed, constitutes a full
disclosure of the facts, for said copy contains all that appears now in exhibit 6.
Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing the terms of
the contract in that the defendant corporation has failed (1) to make the
necessary improvements on the property as required by paragraphs 1 and 3 of
the contract; (2) to submit to the plaintiff from time to time schedule of prices
and conditions under which the subdivided lots are to be sold; and to furnish the
plaintiff a copy of the subdivision plans, a copy of the monthly gross collections
from the sale of the property.
The Court finds from the evidence that he defendant Gregorio Araneta,
Incorporated has substantially complied with obligation imposed by the contract
exhibit 6 in its paragraph 1, and that for improvements alone, it has disbursed the
amount of P117,167.09. It has likewise paid taxes, commissions and other
expenses incidental to its obligations as denied in the agreement.
With respect to the charged that Gregorio Araneta, Incorporated has failed to
submit to plaintiff a copy of the subdivision plains, list of prices and the
conditions governing the sale of subdivided lots, and monthly statement of

collections form the sale of the lots, the Court is of the opinion that it has no basis.
The evidence shows that the defendant corporation submitted to the plaintiff
periodically all the data relative to prices and conditions of the sale of the
subdivided lots, together with the amount corresponding to her. But without any
justifiable reason, she refused to accept them. With the indifferent attitude
adopted by the plaintiff, it was thought useless for Gregorio Araneta,
Incorporated to continue sending her statement of accounts, checks and other
things. She had shown on various occasions that she did not want to have any
further dealings with the said corporation. So, if the defendant corporation
proceeded with the sale of the subdivided lots without the approval of the
plaintiff, it was because it was under the correct impression that under the
contract exhibit 6 the decision of the majority co-owners is binding upon all the
three.
The Court feels that recission of the contract exhibit 6 is not minor violations of
the terms of the agreement, the general rule is that "recission will not be
permitted for a slight or casual breach of the contract, but only for such breaches
as are so substantial and fundamental as to defeat the object of the parties in
making the agreement" (Song Fo & Co. vs. Hawaiian-Philippine Co., 47 Phil. 821).
As regards improvements, the evidence shows that during the Japanese
occupation from 1942 and up to 1946, the Araneta Inc. although willing to fill the
land, was unable to obtain the equipment and gasoline necessary for filling the low
places within the parcel. As to sales, the evidence shows that Araneta Inc.
purposely stopped selling the lots during the Japanese occupantion, knowing that
the purchase price would be paid in Japanese military notes; and Atty. Araneta
claims that for this, plaintiff should be thankfull because otherwise she would have
received these notes as her share of the receipts, which currency later became
valueles.
But the main contention of the appellant is that the contract (Exh. 6) should be
declared null and void because its terms, particularly paragraphs 9, 11 and 15
which we have reproduced, violate the provisions of Art. 400 of the Civil Code,
which for the purposes of reference we quote below:
ART. 400. No co-owner shall be obliged to remain a party to the community. Each
may, at any time, demand the partition of the thing held in common.
Nevertheless, an agreement to keep the thing undivided for a specified length of
time, not exceeding ten years, shall be valid. This period may be a new agreement.
We agree with the trial court that the provisions of Art. 400 of the Civil Code are
not applicable. The contract (Exh., 6) far from violating the legal provision that
Page 11 of 16
forbids a co-owner being obliged to remain a party to the community, precisely
has for its purpose and object the dissolution of the co-ownership and of the
community by selling the parcel held in common and dividing the proceeds of the
sale among the co-owners. The obligation imposed in the contract to preserve the
co-ownership until all the lots shall have been sold, is a mere incident to the main
object of dissolving the co-owners. By virtue of the document Exh. 6, the parties
thereto practically and substantially entered into a contract of partnership as the
best and most expedient means of eventually dissolving the co-ownership, the life
of said partnership to end when the object of its creation shall have been attained.
This aspect of the contract is very similar to and was perhaps based on the other
agreement or contract (Exh. "L") referred to by appellant where the parties
thereto in express terms entered into partnership, although this object is not
expressed in so many words in Exh. 6. We repeat that we see no violation of Art.
400 of the Civil Code in the parties entering into the contract (Exh. 6) for the very
reason that Art. 400 is not applicable.
Looking at the case from a practical standpoint as did the trial court, we find no
valid ground for the partition insisted upon the appellant. We find from the
evidence as was done by the trial court that of the 64,928.6 sq. m. which is the
total area of the parcel held in common, only 1,600 sq. m. or 2.5 per cent of the
entire area remained unsold at the time of the trial in the year 1947, while the
great bulk of 97.5 per cent had already been sold. As well observed by the court
below, the partnership is in the process of being dissolved and is about to be
dissolved, and even assuming that Art. 400 of the Civil Code were applicable,
under which the parties by agreement may agree to keep the thing undivided for a
period not exceeding 10 years, there should be no fear that the remaining 1,600
sq. m. could not be disposed of within the four years left of the ten-years period
fixed by Art. 400.
We deem it unnecessary to discuss and pass upon the other points raised in the
appeal and which counsel for appellant has extensively and ably discussed, citing
numerous authorities. As we have already said, we have viewed the case from a
practical standpoint, brushing aside technicalities and disregarding any minor
violations of the contract, and in deciding the case as we do, we are fully convinced
that the trial court and this Tribunal are carrying out in a practical and expeditious
way the intentions and the agreement of the parties contained in the contract
(Exh. 6), namely, to dissolve the community and co-ownership, in a manner most
profitable to the said parties.
In view of the foregoing, the decision appealed from is hereby affirmed. There is
no pronouncement as to costs.

So ordered.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-26855 April 17, 1989
FRANCISCO GARCIA, PAZ GARCIA, and MARIA GARCIA, petitioners,
vs.
JOSE CALALIMAN, PACIENCIA TRABADILLO & HON. COURT OF APPEALS,
Third Division, respondents.
Jose Gaton for petitioners.
Ricardo Q. Castro for respondents.
Civil Law; Wills and Succession;  Partition and Distribution of Estate; Sale of
Hereditary Rights Before Partition; Legal Redemption; The written notice required
under Art. 1088 of the Civil Code for purposes of legal redemption is
indispensable.–––The issue has been squarely settled in the case of Castillo v.
Samonte, where this Court observed: “Both the letter and spirit of the new Civil
Code argue against any attempt to widen the scope of the notice specified in
Article 1088 by including therein any other kind of notice, such as verbal or by
registration. If the intention of the law had been to include verbal notice or any
other means of information as sufficient to give the effect of this notice, then there
would have been no necessity or reasons to specify in Article 1088 of the New Civil
Code that the said notice be made in writing for, under the old law, a verbal notice
or information was sufficient (106 Phil. 1023 [1960]).” In the above-quoted
decision the Court did not consider the registration of the deed of sale with the
Register of Deeds sufficient notice, most specially because the property involved
was unregistered land, as in the instant case. The Court took note of the fact that
the registration of the deed of sale as sufficient notice of a sale under the provision
of Section 51 of Act No. 496 applies only to registered lands and has no application
whatsoever to a case where the property involved is, admittedly, unregistered
land. Consistent with aforesaid ruling, in the interpretation of a related provision
(Article 1623 of the New Civil Code) this Court had stressed that written notice is
indispensable, actual knowledge of the sale acquired in some other manner by the
Page 12 of 16
Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.
Paras, C. J., I certify that Mr. Justice Feria voted to affirm.
redemptioner, notwithstanding. He or she is still entitled to written notice, as
exacted by the Code, to remove all uncertainty as to the sale, its terms and its
validity, and to quiet any doubt that the alienation is not definitive. The law not
having provided for any alternative, the method of notifications remains exclusive,
though the Code does not prescribe any particular form of written notice nor any
distinctive method for written notification of redemption (Conejero et al. v. Court
of Appeals et al. 16 SCRA 775 [1966]; Etcuban v. Court of Appeals, 148 SCRA 507
[1987]; Cabrera v. Villanueva, G.R. No. 75069, April 15, 1988).
Same; Same; Same; Same; Same; Same; Same; In the absence of a written
notification of the sale by the vendors, the 30-day period provided in Art. 1088 has
not even begun to run.–––Petitioners fault the appellate court in not awarding
them damages, attorney’s fees and costs. After finding in favor of respondent
spouses and against petitioners herein it is untenable for petitioners to expect that
the appellate court would award damages and attorney’s fees and costs. However
as already discussed, petitioners have not lost their right to redeem, for in the
absence of a written notification of the sale by the vendors, the 30-day period has
not even begun to run. Petitioners clearly can claim attorney’s fees for bad faith on
the part of respondents, first, for refusing redemption, and secondly for declaring
the entire land as theirs, although they knew some heirs had not sold their shares.
PARAS, J.:
This is a petition for review on certiorari of the decision * of the Court of Appeals
in CA-G.R. No. 22179-R, promulgated on August 31, 1966, reversing the decision of
the Court of First Instance of Iloilo ** in Civil Case No. 3489, and rendering a new
one dismissing the complaint of petitioner herein, the dispositive portion of which
reads as follows:
WHEREFORE, the judgment appealed from is hereby reversed
and another entered, dismissing plaintiff's complaint. No
pronouncement as to costs. (p. 29 Rollo)
The facts of the case are as follows:
On February 11, 1946, one Gelacio Garcia died intestate, leaving a parcel of
unregistered land about 372 sq. meters, situated in the Municipality of Tubungan,
Province of Iloilo (Exhibits, p. 19). On his death the property was inherited by his
nephews, nieces, grandnephews who are the descendants of his late brothers,
Pedro, Simeon, Buenaventura and Marcos (TSN, Sept. 6,1956, p. 3).

On December 3, 1954, the heirs, Juanita Bertomo, Joaquin Garcia, Porfirio Garcia,
Dioscoro Garcia, Flora Garcia, Consolacion Garcia, Remedios Garcia, Trinidad
Garcia, Baltazar Garcia signed a document entitled, "Extra-judicial Partition and
Deed of Sale" (Exhibits, p. 19). The parcel of land subject of the document was
described as follows:
A parcel of residential land, about 372 square meters, lst class,
Identified as Assessor's Lot No. 107, Block No. 8, bounded on the
north by Paz and Federal Streets; on the south by Tabaosares and
Antonia Tacalinar; on the East by Piedad Street; and on the West
by Paz Street. This parcel of land has no concrete monuments to
indicate its boundaries but there are dikes, stones and temporary
fences used as landmarks and boundary signals. This parcel of
land is covered by Tax Declaration No. 1149, S. of 1947, in the
name of Gelacio Garcia, and its assessed value of P110.00. (p. 19,
Exhibits)
The last paragraph of the same document states:
That for and in consideration of the sum of FIVE HUNDRED
PESOS (P500.00), Philippine Currency, to us in hand paid by the
spouses, JOSE CALALIMAN, and PACIENCIA TRABADILLO, all of
legal age, Filipinos and residents of the municipality of Tubungan,
province of Iloilo, Philippines, receipt of which we hereby
acknowledged and confessed to our entire satisfaction, do by
these presents, cede, sell, convey and transfer the above-
described parcel of land unto the said spouses, Jose Calaliman
and Paciencia Trabadillo, their heirs, successors and assigns free
from all liens and encumbrances whatever. (p. 19, Exhibits)
The document was inscribed in the Register of Deeds of Iloilo on February
24,1955, Inscription No. 20814, Page 270, Vol. 64 (Exhibits, p. 20).
On December 17, 1954 another group of heirs, Rosario Garcia, Margarita Garcia,
Dolores Rufino, Resurreccion Tagarao, Serafin Tagarao, Buenaventura Tagarao,
Fortunata Garcia and Simeon Garcia, all residents of Isabela, Negros Occidental,
also sold to the spouses Jose Calaliman and Paciencia Trabadillo through their
attorney-in-fact, Juanito Bertomo, their shares, rights, interest and participation in
the same parcel of land. The Deed of Sale was registered in the Register of Deeds of
Iloilo also on December 22, 1954, Inscription No. 20640, p. 88, Vol. 64 (Exhibits, p.
2122).
Page 13 of 16
On May 7, 1955 the heirs Francisco Garcia, Paz Garcia, and Maria Garcia,
petitioners herein, filed against the spouses Jose Calaliman and Paciencia
Trabadillo, private respondents herein, Civil Case No. 3489 with the Court of First
Instance of Iloilo, for legal redemption of the 3/4 portion of the parcel of land
inherited by the heirs from the late Gelacio Garcia, which portion was sold by their
co-heirs to the defendants. In the complaint (Record on Appeal, p. 4) plaintiffs
alleged, among others:
5. That, plaintiffs' co-owners had never offered for sale their
interest and shares over the said land to the plaintiffs prior to the
sale in favor of the defendants, nor given notice of such intention
on their part; and that, no notice in writing has been given by said
co-owners to the plaintiffs of the said sale, such that, plaintiffs
came to learn of it only from other source;
6. That, plaintiffs would have purchased the interest and shares of
their co-owners had the latter offered the same to them prior to
the sale thereof to the defendants; and that, within 30 days after
learning of the sale made to the defendants under annexes 'A', 'B'
and 'B-l', plaintiffs made repeated offer to the defendants to allow
them to redeem said interest and shares acquired by the
defendants in accordance with the right granted to the plaintiffs
by law in such a case, offering a reasonable price thereof of P300
taking into consideration the fact that the defendants had
acquired only 3/4 of the land of 372 square meters more or less,
in area with assessed value of P110 and a fair market value of 372
at Pl per square meter, the price actually obtaining in the locality
at the time of the sale thereof under Annexes 'A', 'B' and 'B-l';
however, the defendants refused and have until the present
refused to grant redemption thereof giving no reason why other
than challenging the plaintiffs to bring their case in court:
7. That, the circumstances surrounding the transaction between
the defendants and plaintiffs' co-owners, the vendors, were such
that defendants could not have actually paid nor the vendors
actually received the total price of P800 as stipulated in the deeds
Annexes 'A', 'B' and 'B-l' while the said price fixed is grossly
excessive and highly exaggerated and prohibitive for evidently
ulterior motive:
8. That, the land herein described is an ancestral property and
plaintiffs have actually a house standing thereon and having lived
thereon ever since, such that, the defendants' refusal to allow
redemption thereof has caused the plaintiffs mental torture,

worry and anxiety, forcing them to litigate and retain services of
counsel, therefore, plaintiffs demand against the defendants P500
for moral damage, P500 for exemplary damage, P300 for
attorney's fees, aside from actual expenses incurred; and,
furthermore, P5 monthly as reasonable value of defendants'
occupation of a portion of the premises counting from the filing of
this complaint.
They prayed that the trial court render judgment:
1. Declaring the plaintiffs to be entitled to redeem from the
defendants for the price of P300 or for such reasonable price as
may be determined by this Honorable Court the interest and
shares over the land described in this complaint of plaintiffs' co-
owners, Joaquin, Porfirio, Flora, Dioscoro, Consolacion, Remedios,
Trinidad, Baltazar, Rosario, Margarita, Dolores, Fortunata and
Simon, all surnamed Garcia, and Resurreccion, Serafin and
Buenaventura, all surnamed Tagarao, sold by them to the
defendants under the deeds of sale Annexes 'A', 'B' and 'B-l' of
this complaint; and ordering the defendants to execute the
proper instrument of reconveyance or redemption thereof in
favor of the plaintiffs; and, ordering them to vacate the premises;
2. Condemning the defendants to pay to the plaintiffs P500 for
moral damage; P500 for exemplary damage; P300 for attorney's
fees and actual expenses incurred; P5 monthly from the filing of
this complaint as reasonable value of defendants' occupation of a
portion of the land; the costs of this action; and, for such other
relief and remedy as may be legal, just and equitable."
On the other hand, the defendants, private respondents herein, alleged in their
answer the following special affirmative defenses (Record on Appeal, p. 14):
1. That plaintiffs have no cause of action against the herein
defendants;
2. That due notices in writing have been sent to plaintiff Francisco
Garcia at his residence at 2875 Felix Huertas St., Sta. Cruz, Manila,
sometime last June 1953, in which plaintiff Francisco Garcia was
informed of his co-owners signified intention to sell their shares,
and likewise, the other plaintiffs Paz and Maria Garcia were
personally notified of the same hence, for that reason, they are
Page 14 of 16
now barred to claim legal redemption of the land in question,
having filed their belated claim too late."
The trial court rendered judgment on September 12, 1957 in favor of the plaintiffs
(Record on Appeal, p. 15), the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered:
(a) Sentencing the defendants to resell the property to the
plaintiffs for P800.00 which is the total consideration of the two
deeds of sale Exhibits A and B;
(b) In the event that the defendants fail to execute the deed of
resale within ten days from the date this decision becomes final,
the Clerk of Court is hereby ordered to execute the corresponding
deed pursuant to the provisions of Section 10 of Rule 39 of the
Rules of Court;
(c) Without pronouncement as to costs.
On October 14, 1957 plaintiffs filed their notice of Appeal predicated on "(a)
failure of the Court to adjudge the real or reasonable price of the sale or otherwise
the redemption value thereof; (b) failure of the Court to adjudge damages
including attorney's fees in favor of the plaintiffs and the costs." (Record on
Appeal, p. 18).
Defendants filed their own notice of appeal on October 15, 1957 (Record on
Appeal, p. 19).
On appeal the Court of Appeals in a decision promulgated on August 31, 1966
reversed the decision of the trial court and rendered another one dismissing
plaintiff's complaint with no pronouncement as to costs (Rollo, p. 22).
The instant petition for review by certiorari was filed with the Court on December
12, 1966 (Rollo, p. 11). The Court at first dismissed the petition in a resolution
dated December 22, 1966, for insufficient supporting papers (Rollo, p. 35) but
reconsidered the said Resolution of Dismissal later in a Resolution dated February
8, 1967 (Rollo, p. 97) as prayed for in a motion for reconsideration filed by
petitioners on February 1, 1967 (Rollo, p. 38). The same Resolution of February 8,
1967 gave due course to the petition.
The Brief for the Petitioners was filed on June 9,1967 (Rollo, p. 106); the Brief for
the Respondents was received in the Court on August 31, 1967 (Rollo, p. 119).

Petitioners having manifested they would not file reply brief on September
14,1967 (Rollo, p. 122) the Court considered the case submitted for decision, in a
Resolution dated September 21, 1967 (Rollo, p. 124).
Petitioners assign the following errors:
I. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING
THAT THE 30-DAY PERIOD PRESCRIBED IN ARTICLE 1088 OF
THE NEW CIVIL CODE FOR A CO-HEIR TO EXERCISE HIS RIGHT
OF LEGAL REDEMPTION, HAD ALREADY ELAPSED WHEN THE
HEREIN PLAINTIFFS FILED THE ACTION ON MAY 7,1955.
II. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING
THAT THERE WAS NO OFFER TO REIMBURSE THE DEFENDANTS
FOR THE PORTION OF THE LAND IN QUESTION SOLD TO THEM
BY THE CO-HEIRS OF THE PLAINTIFFS.
III. THE HONORABLE COURT OF APPEALS ERRED IN REVERSING
THE JUDGMENT OF THE LOWER COURT, AND IN NOT
ADJUDGING DAMAGES, ATTORNEY'S FEES AND COSTS IN FAVOR
OF THE PLAINTIFFS.
(Brief for the Petitioners, p. 1)
There is no question that the provision of law applicable in the instant case is Art.
1088 of the New Civil Code (Art. 1067, Old Civil Code) as the matter concerns heirs
and inheritance not yet distributed (Wenceslao v. Calimon, 46 Phil. 906 [1923]).
Art. 1088 states:
Article 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for
the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by
the vendor.
The main issue is whether or not petitioners took all the necessary steps to
effectuate their exercise of the right of legal redemption within the period fixed by
Art. 1088 of the Civil Code.
It is undisputed that no notification in writing was ever received by petitioners
about the sale of the hereditary interest of some of their co-heirs in the parcel of
land they inherited from the late Gelacio Garcia, although in a letter dated June 23,
Page 15 of 16
1953 petitioner Francisco Garcia wrote one of his co- heirs, Joaquin Garcia, who is
an uncle of petitioners, proposing to buy the hereditary interests of his co-heirs in
their unpartitioned inheritance, (Exhibit, p. 3). Although said petitioner asked that
his letter be answered "in order that I will know the results of what I have
requested you," (Exhibit, p. 14) there is no proof that he was favored with one.
Petitioners came to know that their co-heirs were selling the property on
December 3, 1954 when one of the heirs, Juanito Bertomo, asked Petitioner Paz
Garcia to sign a document prepared in the Municipality of Tubungan because the
land they inherited was going to be sold to private respondent, Jose Calaliman
(TSN, September 6, 1957, p. 60). The document mentioned by petitioner Paz
Garcia could be no other than the one entitled "Extra-Judicial Partition and Deed of
Sale" dated December 3, 1954 as it is in this document that the name of Paz Garcia,
Maria Garcia and Amado Garcia appear unsigned by them (Exhibits, p. 19).
It is not known whether the other heirs whose names appear in the document had
already signed the document at the time Paz Garcia was approached by Juanito
Bertomo. Paz Garcia, however, testified that she immediately informed her brother
Francisco that Juanita Bertomo wanted to sell the land to Jose Calaliman (TSN,
September 6,1957, p. 62). On December 26, 1954 he wrote respondents giving
them notice of his desire to exercise the right of legal redemption and that he will
resort to court action if denied the right (Exhibits, p. 8). The respondents received
the letter on January 13, 1955 but petitioner Francisco Garcia did not get any
answer from them. Neither did respondents show him a copy of the document of
sale nor inform him about the price they paid for the sale when he went home to
Tubungan from Manila sometime in March 1955 and went to see the respondent
spouse about the matter on March 24,1955 (TSN, September 6,1957, p. 18).
Because of the refusal of respondent Jose Calaliman to show him the document of
sale or reveal to him the price paid for the parcel of land, petitioner Francisco
Garcia went to the Office of the Register of Deeds on the same date, March 24,1955
and there found two documents of sale regarding the same parcel of land
(TSN, Ibid, p. 19).
Petitioners filed the case for legal redemption with the trial court on May 7, 1955.
Respondents claim that the 30-day period prescribed in Article 1088 of the New
Civil Code for petitioners to exercise the right to legal redemption had already
elapsed at that time and that the requirement of Article 1088 of the New Civil Code
that notice would be in writing is deemed satisfied because written notice would
be superfluous, the purpose of the law having been fully served when petitioner
Francisco Garcia went to the Office of the Register of Deeds and saw for himself,
read and understood the contents of the deeds of sale (Brief for respondents, p. 6).
 Page 16 of 16

The issue has been squarely settled in the case of Castillo v. Samonte, where this PREMISES CONSIDERED, the decision of the Court of Appeals is REVERSED and
Court observed: the decision of the trial court is REINSTATED with the modification that
petitioners be awarded damages, attorney's fees and costs in the amount prayed
Both the letter and spirit of the new Civil Code argue against any for.
attempt to widen the scope of the notice specified in Article 1088
by including therein any other kind of notice, such as verbal or by SO ORDERED.
registration. If the intention of the law had been to include verbal
notice or any other means of information as sufficient to give the Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.
effect of this notice, then there would have been no necessity or
reasons to specify in Article 1088 of the New Civil Code that the
said notice be made in writing for, under the old law, a verbal
notice or information was sufficient (106 Phil. 1023 [1960]).

In the above-quoted decision the Court did not consider the registration of the
deed of sale with the Register of Deeds sufficient notice, most specially because the
property involved was unregistered land, as in the instant case. The Court took
note of the fact that the registration of the deed of sale as sufficient notice of a sale
under the provision of Section 51 of Act No. 496 applies only to registered lands
and has no application whatsoever to a case where the property involved is,
admittedly, unregistered land.

Consistent with aforesaid ruling, in the interpretation of a related provision

(Article 1623 of the New Civil Code) this Court had stressed that written notice is
indispensable, actual knowledge of the sale acquired in some other manners by
the redemptioner, notwithstanding. He or she is still entitled to written notice, as
exacted by the Code, to remove all uncertainty as to the sale, its terms and its
validity, and to quiet any doubt that the alienation is not definitive. The law not
having provided for any alternative, the method of notifications remains exclusive,
though the Code does not prescribe any particular form of written notice nor any
distinctive method for written notification of redemption (Conejero et al. v. Court
of Appeals et al., 16 SCRA 775 [1966]; Etcuban v. Court of Appeals, 148 SCRA 507
[1987]; Cabrera v. Villanueva, G.R. No. 75069, April 15,1988).

Petitioners fault the appellate court in not awarding them damages, attorney's fees
and costs. After finding in favor of respondent spouses and against petitioners
herein it is untenable for petitioners to expect that the appellate court would
award damages and attorney's fees and costs. However as already discussed,
petitioners have not lost their right to redeem, for in the absence of a written
notification of the sale by the vendors, the 30-day period has not even begun to
run. Petitioners clearly can claim attorney's fees for bad faith on the part of
respondents, first, for refusing redemption, and secondly for declaring the entire
land as theirs, although they knew some heirs had not sold their shares.