SECOND DIVISION any indefinite time thereafter, because in order

to be capacitated to inherit, the devisee must be

[G.R. No. L-22036. April 30, 1979.] living at the moment the succession opens,
except in case of representation, when it is
TESTATE ESTATE OF THE LATE proper.
REVEREND FATHER PASCUAL RIGOR. THE
PARISH PRIEST OF THE ROMAN CATHOLIC Decision affirmed.
CHURCH OF VICTORIA,
TARLAC, Petitioner-Appellant, v. BELINA
RIGOR, NESTORA RIGOR, FRANCISCA SYLLABUS
ESCOBAR DE RIGOR and JOVITA
ESCOBAR DE FAUSTO, Respondents-
Appellees. 1. TESTAMENTARY SUCCESSION;
TESTATOR’S INTENT IS THE LAW OF THE
D. Tañedo, Jr. for Appellants. CASE. — In testamentary succession cases, as
in cases involving the law of contracts and
J. Palanca, Sr. for Appellee. statutory construction, where the intention of the
contracting parties or of the lawmaking body is
SYNOPSIS to be ascertained, the primary issue is the
determination of the testator’s intention which is
In his will, the late Father Pascual Rigor of the law of the case (dicat estor et eirt lex). The
Victoria, Tarlac, devised forty-four hectares of will of the testator is the first and principal law in
ricelands to his nearest male relative who would the matter of testaments. When his intention is
study for the priesthood and provided that the clearly and precisely expressed, any
administration of the ricelands would be under interpretation must be in accord with the plain
the responsibility of the parish priest of Victoria and literal meaning of his words, except when it
during the time that there is no qualified devisee may certainly appear that his intention was
as contemplated in the will. During the testate different from that literally expressed.
proceedings, the trial court approved the project
of partition and directed the administratrix to 2. ID.; CAPACITY TO INHERIT. — In order to
deliver to the devisees their respective shares. be capacitated to inherit, the heir, devisee or
Inasmuch as no nearest male relative of the legatee must be living at the moment the
testator claimed the devise and as the succession opens, except in case of
administratrix and the legal heirs believed that representation, when it is proper (Art. 1025,
the parish priest of Victoria had no right to Civil Code).
administer the ricelands, the same were not
delivered to him. The latter, however, petitioned 3. ID.; WHERE BEQUEST IS INOPERATIVE.
for delivery of the ricelands to the church. The — If the bequest for any reason should be
lower court, after first declaring the bequest inoperative, it shall be merged into the estate,
inoperative, later reconsidered its findings in an except in cases of substitution and those in
order, on the ground that the testator had a which the right of accretion exists (Art. 956,
grandnephew (born after the testator’s death), New Civil Code). The Civil Code recognizes
who was a seminarian, and directed the that a person may die partly testate and partly
administrator of the estate to deliver the intestate, or that there may be mixed
ricelands to the parish priest of Victoria as succession. The old rule as to the indivisibility of
trustee. On appeal, the Court of Appeals the testator’s will is no longer valid. Thus, if a
reversed the order. conditional legacy does not take effect, there
will be intestate succession as to the property
The Supreme Court ruled that the will referred covered by the said legacy.
to the nearest male relative of the testator who
was living at the time of his death and not to 4. ID.; WHERE WILL DOES NOT DIPOSE OF
ALL PROPERTIES. — Legal succession takes
place when the will "does not dispose of all that
belongs to the testator (Art. 960(2), New Civil
Code).
DECISION
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. chanrobles virtual
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 v. 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
testator’s nearest relatives, namely, his three
sisters: Florencia Rigor-Escobar, Belina Rigor-
Manaloto and Nestora Rigor-Quiambao. The
testator gave a devise to his cousin, Fortunato
Gamalinda.
In addition, the will contained the following
controversial bequest (paragraphing supplied to
facilitate comprehension of the testamentary
provisions): jgc:chanroble s.com.ph
"Doy y dejo como legado CUATRO (4)
PARCELAS de terreno palayeros, situados en
el municipio de Guimba de la provincia de
NUEVA ECIJA, cuyo num. de CERTIFICADO
DE TRANSFERENCIA DE TITULO SON; —
Titulo Num. 6530, mide 16,249 m. cuadrados
de superficie; Titulo Num. 6548, mide 242,998
m. cuadrados de superficie; Titulo Num. 6525,
mide 62,665 m. cuadrados de superficie; y
Titulo Num. 6521, mide 119,251 m. cuadrados
de superficie; a cualquier pariente mio varon
mas cercano que estudie la carrera eclesiastica
hasta ordenarse de Presbiterado o sea
Sacerdote; las condiciones de estate legado
son:jgc:chanrobles.com.ph
"(1.a) Prohibe en absoluto la venta de estos
terrenos arriba situados objectos de este
legado;
"(2.a) Que el legatario pariente mio mas
cercano tendra derecho de empezar a gozar y
administrar de este legado al principiar a curzar
lawlibrary
la Sagrada Teologia, y ordenado de Sacerdote,
hasta su muerte; pero que pierde el legatario
este derecho de administrar y gozar de este
legado al dejar de continuar sus estudios para
ordenarse de Presbiterado (Sacerdote).
"Que el legatario una vez Sacerdote ya estara
obligado a celebrar cada año VEINTE (20)
Misas rezadas en sufragio de mi alma y de mis
padres difuntos, y si el actual legatario,
quedase excomulgado, IPSO FACTO se el
despoja este legado, y la administracion de
esto pasara a cargo del actual Parroco y sus
sucesores de la Iglesia Catolica de Victoria,
Tarlac.
"Y en intervalo de tiempo que no haya legatario
acondicionado segun lo arriba queda
expresado, pasara la administracion de este
legado a cargo del actual Parroco Catolico y
sus sucesores, de Victoria, Tarlac.
"El Parroco administrador de estate legado,
acumulara anualmente todos los productos que
puede tener estate legado, ganando o sacando
de los productos anuales el CINCO (5) por
ciento para su administracion, y los derechos
correspondientes de las VEINTE (20) Misas
rezadas que debiera el Parroco celebrar cada
año, depositando todo lo restante de los
productos de estate legado, en un banco, a
nombre de estate legado." cralaw virtua1aw library

To implement the foregoing bequest, the
administratrix in 1940 submitted a project of
partition containing the following item:
"5. LEGACY OF
"That it be adjudicated in favor of the legacy
purported to be given to the nearest male
relative who shall take the priesthood, and in
the interim to be administered by the actual
Catholic Priest of the Roman Catholic Church of
Victoria, Tarlac, Philippines, or his successors,
the real properties hereinbelow indicated, to
wit: jgc:chanrobles.com.ph
"Title No. Lot No. Area in Has. Tax Dec. Ass.
Value
T-6530 3663 1.6249
T-6548 3445-C 24.2998
T-6525 3670 6.2665
T-6521 3666 11.9251
————
"Total area and value — 44.1163 P13,090.00"
Judge Roman A. Cruz in his order of August 15,
1940, approving the project of partition, directed
that after payment of the obligations of the
estate (including the sum of P3,132.26 due to
the church of the Victoria parish) the
administratrix should deliver to the devisees
their respective shares.
It may be noted that the administratrix and
Judge Cruz did not bother to analyze the
meaning and implications of Father Rigor’s
bequest to his nearest male relative who would
study for the priesthood. Inasmuch as no
nephew of the testator claimed the devise and
as the administratrix and the legal heirs
believed that the parish priest of Victoria had no
right to administer the ricelands, the same were
not delivered to that ecclesiastic. The testate
proceeding remained pending.
About thirteen years after the approval of the
project of partition, or on February 19, 1954, the
parish priest of Victoria filed in the pending
jgc:chanrobles.com.ph testate proceeding a petition praying for the
appointment of a new administrator (succeeding
THE CHURCH the deceased administratrix, 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 declared inoperative and
that they be adjudged as the persons entitled to
18740 P340.00 the said ricelands since, as admitted by the
parish priest of Victoria, "no nearest male
18730 7,290.00 relative of" the testator "has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal).
18736 1,880.00 That petition was opposed by the parish priest
of Victoria.
18733 3,580.00
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 second motion for
reconsideration in his order of December 10,
1957 on the ground that the testator had a
grandnephew named Edgardo G. Cunanan (the
grandson of his first cousin) who was a
seminarian in the San Jose Seminary of the
Jesuit Fathers in Quezon City. The
administrator was directed to deliver the
ricelands to the parish priest of Victoria as
trustee.
The legal heirs appealed to the Court of
Appeals. It reversed that order. It held that
Father Rigor had created a testamentary trust
for his nearest male relative who would take the
holy orders but that such trust could exist only
for twenty years because to enforce it beyond
that period would violate "the rule against
perpetuities." It ruled that since no legatee
claimed the ricelands within twenty years after
the testator’s death, the same should pass to
his legal heirs, citing articles 888 and 912(2) of
the old Civil Code and article 870 of the new
Civil Code.
The parish priest in this appeal contends that
the Court of Appeals erred in not finding that the
testator created a public charitable trust and in
not liberally construing the testamentary
provisions so as to render the trust operative
and to prevent intestacy.
As refutation, the legal heirs argue that the
Court of Appeals declared 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.chanroble s.com.ph : virtual
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 v. Manarang, 27
Phil. 209, 215; Rodriguez v. 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 v. 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 will, 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 restatement of the
provisions of his will:chanrob1es virtual 1aw library
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
law library 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 ricelands would pass to
the incumbent parish priest of Victoria and his
successors.
6. That during the interval of time that there is
no qualified devisee, as contemplated above,
the administration of the ricelands would be
under the responsibility of the incumbent parish
priest of Victoria and his successors, and
7. That the parish priest-administrator of the
ricelands would accumulate annually the
products thereof, obtaining or getting from the
annual produce five percent thereof for his
administration and the fees corresponding to
the twenty masses with prayers that the parish
priest would celebrate for each year, depositing
the balance of the income of the devise in the
bank in the name of his bequest.
From the foregoing testamentary provisions, it
may be deduced that the testator intended to
devise the ricelands to his nearest male relative
who would become a priest, who was forbidden
to sell the ricelands, who would lose the devise
if he discontinued his studies for the priesthood,
or having been ordained a priest, he was
excommunicated, and who would be obligated
to say annually twenty masses with prayers for
the repose of the souls of the testator and his
parents.
On the other hand, it is clear that the parish
priest of Victoria would administer the ricelands
only in two situations: one, during the interval of
time that no nearest male relative of the testator
was studying for the priesthood and two, in
case the testator’s nephew became a priest and
he was excommunicated.
What is not clear is the duration of "el intervalo
de tiempo que no haya legatario
acondicionado", or how long after the testator’s
death would it be determined that he had a
nephew who would pursue an ecclesiastical
vocation. It is that patent ambiguity that has
brought about the controversy between the
parish priest of Victoria and the testator’s legal
heirs.
Interwoven with that equivocal provision is the
time when the nearest male relative who would
study for the priesthood should be determined.
Did the testator contemplate only his nearest
male relative at the time of his death? Or did he
have in mind any of his nearest male relatives
at anytime after his death?
We hold that the said bequest refers to the
testator’s nearest male relative living at the time
of his death and not to any indefinite time
thereafter. "In order to be capacitated to inherit,
the heir, devisee or legatee must be living at the
moment the succession opens, except in case
of representation, when it is proper" (Art. 1025,
Civil Code).chanroble s virtualawlibrary
chanrobles.com:chanroble s.com.ph
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
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
grandnephews (the sons 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
belonging 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
carrera eclesiastica" 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 "no nearest
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
will, was likewise inoperative.
The appellant in contending that a public
charitable trust was constituted by the testator
in is favor assumes that he was a trustee or a
substitute devisee. That contention is
untenable. A reading of the testamentary
provisions regarding the disputed bequest not
support the view that the parish priest of
Victoria was a trustee or a substitute devisee in
the event that the testator was not survived by a
nephew who became a priest.
It should be understood that the parish priest of
Victoria could become a trustee only when the
testator’s nephew living at the time of his death,
who desired to become a priest, had not yet
entered the seminary or, having been ordained
a priest, he was excommunicated. Those two
contingencies did not arise, and could not have
arisen, in this case because no nephew of the
testator manifested any intention to enter the
seminary or ever became a priest.
The Court of Appeals correctly ruled that this
case is covered by article 888 of the old Civil
Code, now article 956, which provides that if
"the bequest for any reason should be
inoperative, it shall be merged into the estate,
except in cases of substitution and those in
which the right of accretion exists" ("el legado . .
. por qualquier causa, no tenga efecto, se
refundir 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 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 (Macrohon Ong Ham v. Saavedra,
51 Phil. 267).
chanroble s.com : virtual law library

SO ORDERED.

FIRST DIVISION
G.R. No. L-29184 January 30, 1989
BENEDICTO LEVISTE, petitioner,
vs.
THE COURT OF APPEALS, HON. JUDGE LUIS
B. REYES, COURT OF FIRST INSTANCE OF
MANILA, ROSA DEL ROSARIO, RITA BANU,
CARMEN DE GUZMAN-MARQUEZ, JESUS R.
DE GUZMAN, RAMON R. DE GUZMAN,
JACINTO R. DE GUZMAN and ANTONIO R. DE
GUZMAN, respondents.
Benedicto Leviste for and in his own behalf.
Gatchalian, Ignacio & Associates for respondents
de Guzman.
GRIÑO-AQUINO, J.:
The issue in this case is whether or not an
attorney who was engaged on a contingent fee
basis may, in order to collect his fees, prosecute
an appeal despite his client's refusal to appeal the
decision of the trial court.
On September 7, 1963, the petitioner, a practicing
attorney, entered into a written agreement with the
private respondent Rosa del Rosario to appear as
her counsel in a petition for probate of the
holographic will of the late Maxima C. Reselva.
Under the will, a piece of real property at Sales
Street, Quiapo, Manila, was bequeathed to Del
Rosario. It was agreed that petitioner's contigent
fee would be thirty-five per cent (35%) of the
property that Rosa may receive upon the probate
of the will (Annex "A", p. 59, Rollo).
In accordance with their agreement, Leviste
performed the following services as Del Rosario's
counsel:
(1) Thoroughly researched and
studied the law on probate and
succession;
(2) Looked for and interviewed
witnesses, and took their
affidavits;
(3) Filed the petition for. probate is
Special Proceeding No. 58325;
(4) Made the proper publications;
(5) Presented at the trial the
following witnesses:
a) Eleuterio de Jesus
b) Lucita de Jesus
c) Purita L. Llanes
d) Rita Banu
e) Jesus Lulod.
On August 20, 1965, Leviste received a letter from
Ms. Del Rosario, informing him that she was
terminating his services as her counsel due to
"conflicting interest." This consisted, according to
the letter, in petitioner's moral obligation to protect
the interest of his brother-in-law, Gaudencio M.
Llanes, whom Del Rosario and the other parties in
the probate proceeding intended to eject as
lessee of the property which was bequeathed to
Del Rosario under the will (Annex "B", p. 60,
Rollo).
On September 20, 1965, petitioner filed a "Motion
to Intervene to Protect His Rights to Fees for
Professional Services." (Annex "B", p. 60, Rollo.)
In an order dated November 12, 1965 the trial
court denied his motion on the ground that he had
"not filed a claim for attorney's fees nor recorded
his attorney's lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal
Statement of Claim for Attorney's Fees and
Recording of Attorney's Lien,' which was noted in
the court's order of December 20, 1965 (Annexes
"D" and "E", pp. 63 & 64, Rollo).
Although the order denying his motion to
intervene had become final, petitioner continued
to receive copies of the court's orders, as well the
pleadings of the other parties in the case. He also
continued to file pleadings. The case was
submitted for decision without the respondents'
evidence.
On November 23, 1966, Del Rosario and Rita
Banu, the special administratrix-legatee, filed a
"Motion To Withdraw Petition for Probate" alleging
that Del Rosario waived her rights to the devise in
her favor and agreed that the De Guzman
brothers and sisters who opposed her petition for
probate, shall inherit all the properties left by the
decedent. (Annex "F", p. 65, Rollo.)
In an order of April 13, 1967 the trial court denied
the motion to withdraw the petition for being
contrary to public policy (Annex "G", pp. 66-67,
Rollo).
Nonetheless, on August 28, 1967, the court
disallowed the will, holding that the legal
requirements for its validity were not satisfied as
only two witnesses testified that the will and the
testatrix's signature were in the handwriting of
Maxima Reselva.
The petitioner filed an appeal bond, notice of
appeal, and record on appeal. The private
respondents filed a motion to dismiss the appeal
on the ground that petitioner was not a party in
interest.
The petitioner opposed the motion to dismiss his
appeal, claiming that he has a direct and material
interest in the decision sought to be reviewed. He
also asked that he be substituted as party-
petitioner, in lieu of his former client, Ms. Del
Rosario.
On March 28, 1968, the trial judge dismissed the
appeal and denied petitioner's motion for
substitution.
The petitioner filed in the Court of Appeals a
petition for mandamus (CA-G.R. No. 41248)
praying that the trial court be ordered to give due
course to his appeal and to grant his motion for
substitution.
On May 22, 1968, the Court of Appeals dismissed
the petition for being insufficient in form and
substance as the petitioner did not appear to be
the proper party to appeal the decision in Special
Proceeding No. 58325 (Annex 1, p. 77, Rollo).
Upon the denial of his motion for reconsideration,
petitioner appealed by certiorari to this Court,
assigning the following errors against the Court of
Appeals' resolution:
1. The Court of Appeals erred in
finding that the petitioner appears
not to be the proper party to
appeal the decision in Sp. Proc.
No. 58325 of the Court of First
Instance of Manila.
2. Assuming the petitioner's right
of appeal is doubtful, the Court of
Appeals erred in dismissing his
petition for mandamus; and
3. The Court of Appeals erred in
not reversing the decision in Sp.
Proc. No. 58325 denying the
probate of the holographic will of
the late Maxima C. Reselva, said
decision being patently erroneous.
Under his first assignment of error, petitioner
argues that by virtue of his contract of services
with Del Rosario, he is a creditor of the latter, and
that under Article 1052 of the Civil Code which
provides:
ART. 1052. If the heir repudiates
the inheritance to the prejudice of
his own creditors, the latter may
petition the court to authorize them
to accept it in the name of the heir.
The acceptance shall benefit the
creditors only to an extent
sufficient to cover the amount of
their credits. The excess, should
there be any, shall in no case
pertain to the renouncer, but shall
be adjudicated to the persons to
whom, in accordance with the
rules established in this Code, it
may belong.
he has a right to accept for his client Del Rosario
to the extent of 35% thereof the devise in her
favor (which she in effect repudiated) to protect
his contigent attorney's fees.
The argument is devoid of merit. Article 1052 of
the Civil Code does not apply to this case. That
legal provision protects the creditor of a
repudiating heir. Petitioner is not a creditor of
Rosa del Rosario. The payment of his fees is
contingent and dependent upon the successful
probate of the holographic will. Since the petition
for probate was dismissed by the lower court, the
contingency did not occur. Attorney Leviste is not
entitled to his fee.
Furthermore, Article 1052 presupposes that the
obligor is an heir. Rosa del Rosario is not a legal
heir of the late Maxima C. Reselva. Upon the
dismissal of her petition for probate of the
decedent's will, she lost her right to inherit any
part of the latter's estate. There is nothing for the
petitioner to accept in her name.
This Court had ruled in the case of Recto vs.
Harden, 100 Phil. 1427, that "the contract (for
contingent attorney's fees) neither gives, nor
purports to give, to the appellee (lawyer) any right
whatsoever, personal or real, in and to her (Mrs.
Harden's) aforesaid share in the conjugal
partnership. The amount thereof is simply
a basis for the computation of said fees."
The Court of Appeals did not err in dismissing the
petition for mandamus, for while it is true that, as
contended by the petitioner, public policy favors
the probate of a will, it does not necessarily follow
that every will that is presented for probate,
should be allowed. The law lays down procedures
which should be observed and requisites that
should be satisfied before a will may be probated.
Those procedures and requirements were not
followed in this case resulting in the disallowance
of the will. There being no valid will, the motion to
withdraw the probate petition was
inconsequential.
Petitioner was not a party to the probate
proceeding in the lower court. He had no direct
interest in the probate of the will. His only interest
in the estate is an indirect interest as former
counsel for a prospective heir. In Paras vs.
Narciso, 35 Phil. 244, We had occassion to rule
that one who is only indirectly interested in a will
may not interfere in its probate. Thus:
... the reason for the rule excluding
strangers from contesting the will,
is not that thereby the court maybe
prevented from learning facts
which would justify or necessitate
a denial of probate, but rather that
the courts and the litigants should
not be molested by the
intervention in the proceedings of
persons with no interest in the
estate which would entitle them to
be heard with relation thereto.
(Paras vs. Narciso, 35 Phil. 244,
246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st
Supp. 1, We held:
We are of the opinion that the
lower court did not err in holding
that notice of an attorney's lien did
not entitle the attorney-appellant to
subrogate himself in lieu of his
client. It only gives him the right to
collect a certain amount for his
services in case his client is
awarded a certain sum by the
court.
WHEREFORE, the petition for certiorari is denied
for lack of merit. Costs against the petitioner.
SO ORDERED.
THIRD DIVISION
G.R. No. L-41171               July 23, 1987 NUMERIANO ESTENZO, petitioners,
vs.
INTESTATE ESTATE OF THE LATE VITO HONORABLE INTERMEDIATE APPELLATE
BORROMEO, PATROCINIO BORROMEO- COURT, JOSE CUENCO BORROMEO, and
HERRERA, petitioner, PETRA O. BORROMEO, respondents.
vs.
FORTUNATO BORROMEO and HON. x - - - - - - - - - - - - - - - - - - - - - - -x
FRANCISCO P. BURGOS, Judge of the Court
of First Instance of Cebu, Branch No. L-65995               July 23, 1987
II, respondents.
PETRA BORROMEO, VITALIANA BORROMEO,
x - - - - - - - - - - - - - - - - - - - - - - -x AMELINDA BORROMEO, and JOSE CUENCO
BORROMEO, petitioners,
No. L-55000               July 23, 1987 vs.
HONORABLE FRANCISCO P. BURGOS,
IN THE MATTER OF THE ESTATE OF VITO Presiding Judge of Branch XV, Regional Trial
BORROMEO, DECEASED, PILAR N. Court of Cebu; RICARDO V. REYES,
BORROMEO, MARIA B. PUTONG, FEDERICO Administrator of the Estate of VITO
V. BORROMEO, JOSE BORROMEO, BORROMEO in Sp. Proc. No. 916-R; and
CONSUELO B. MORALES, AND CANUTO V. DOMINGO L. ANTIGUA, respondents.
BORROMEO, JR., heirs-appellants,
vs. GUTIERREZ, JR., J.:
FORTUNATO BORROMEO, claimant-appellee.
These cases before us all stem from SP. PROC.
x - - - - - - - - - - - - - - - - - - - - - - -x NO. 916-R of the then Court of First Instance of
Cebu.
No. L-62895               July 23, 1987
G.R. No. 41171
JOSE CUENCO BORROMEO, petitioner,
vs. Vito Borromeo, a widower and permanent resident
HONORABLE COURT OF APPEALS, HON. of Cebu City, died on March 13, 1952, in
FRANCISCO P. BURGOS, As presiding Judge Paranaque, Rizal at the age of 88 years, without
of the (now) Regional Trial Court, Branch XV, forced heirs but leaving extensive properties in the
Region VII, RICARDO V. REYES, as province of Cebu.
Administrator of the Estate of Vito Borromeo
in Sp. Proc. No. 916-R, NUMERIANO G. On April 19, 1952, Jose Junquera filed with the
ESTENZO and DOMINGO L. Court of First Instance of Cebu a petition for the
ANTIGUA, respondents. probate of a one page document as the last will
and testament left by the said deceased, devising
x - - - - - - - - - - - - - - - - - - - - - - -x all his properties to Tomas, Fortunato and Amelia,
all surnamed Borromeo, in equal and undivided
No. L-63818               July 23, 1987 shares, and designating Junquera as executor
thereof. The case was docketed as Special
DOMINGO ANTIGUA AND RICARDO V. REYES, Proceedings No. 916-R. The document, drafted in
as Administrator of the Intestate Estate of Spanish, was allegedly signed and thumbmarked
VITO BORROMEO, Sp. Proceedings No. 916-R, by the deceased in the presence of Cornelio
Regional Trial Court of Cebu, joined by HON. Gandionco, Eusebio Cabiluna, and Felixberto
JUDGE FRANCISCO P. BURGOS, as Presiding Leonardo who acted as witnesses.
Judge of Branch XV of the Regional Trial
Court of Cebu, as a formal party, and ATTYS. Oppositions to the probate of the will were filed.
FRANCIS M. ZOSA, GAUDIOSO RUIZ and On May 28, 1960, after due trial, the probate court
held that the document presented as the will of
the deceased was a forgery.
On appeal to this Court, the decision of the
probate court disallowing the probate of the will
was affirmed in Testate Estate of Vito Borromeo,
Jose H. Junquera et al. v. Crispin Borromeo et al.
(19 SCRA 656).
The testate proceedings was converted into an
intestate proceedings. Several parties came
before the court filing claims or petitions alleging
themselves as heirs of the intestate estate of Vito
Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose
Ma. Borromeo and Cosme Borromeo filed
a petition for declaration of heirs and
determination of heirship. There was no
opposition filed against said petition.
2. On November 26, 1967, Vitaliana
Borromeo also filed a petition for
declaration as heir. The heirs of Jose Ma.
Borromeo and Cosme Borromeo filed an
opposition to this petition.
3. On December 13, 1967, Jose
Barcenilla, Jr., Anecita Ocampo de
Castro, Ramon Ocampo, Lourdes
Ocampo, Elena Ocampo, Isagani Morre,
Rosario Morre, Aurora Morre, Lila Morre,
Lamberto Morre, and Patricia Morre, filed
a petition for declaration of heirs and
determination of shares. The petition was
opposed by the heirs of Jose and Cosme
Borromeo.
4. On December 2, 1968, Maria Borromeo
Atega, Luz Borromeo, Hermenegilda
Borromeo Nonnenkamp, Rosario
Borromeo, and Fe Borromeo Queroz filed
a claim. Jose Cuenco Borromeo, Crispin
Borromeo, Vitaliana Borromeo and the
heirs of Carlos Borromeo represented by
Jose Talam filed oppositions to this claim.
When the aforementioned petitions and claims
were heard jointly, the following facts were
established:
1. Maximo Borromeo and Hermenegilda Galan,
husband and wife (the latter having predeceased
the former), were survived by their eight (8)
children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13,
1952, without any issue, and all his brothers and
sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving
the following children:
a. Ismaela Borromeo,who died on Oct. 16,
1939
b. Teofilo Borromeo, who died on Aug. 1,
1955, or 3 years after the death of Vito
Borromeo. He was married to Remedios
Cuenco Borromeo, who died on March 28,
1968. He had an only son-Atty. Jose
Cuenco Borromeo one of the petitioners
herein.
c. Crispin Borromeo, who is still alive.
4. Anecita Borromeo, sister of Vito Borromeo, died
ahead of him and left an only daughter, Aurora B.
Ocampo, who died on Jan. 30, 1950 leaving the
following children:
a. Anecita Ocampo Castro
b. Ramon Ocampo
 c. Lourdes Ocampo
d. Elena Ocampo, all living, and
e. Antonieta Ocampo Barcenilla
(deceased), survived by claimant Jose
Barcenilla, Jr.
5. Cosme Borromeo, another brother of Vito
Borromeo, died before the war and left the
following children:
a. Marcial Borromeo
b. Carlos Borromeo,who died on Jan. 18,
1965,survived by his wife, Remedios
Alfonso, and his only daughter, Amelinda
Borromeo Talam
c. Asuncion Borromeo
d. Florentina Borromeo, who died in 1948.
e. Amilio Borromeo, who died in 1944.
f. Carmen Borromeo, who died in 1925.
The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito
Borromeo, died before the war and left the
following children:
a. Exequiel Borromeo,who died
December 29, 1949
b. Canuto Borromeo, who died on Dec.
31, 1959, leaving the following children:
aa. Federico Borromeo
bb. Marisol Borromeo (Maria B.
Putong, Rec. p. 85)
cc. Canuto Borromeo, Jr.
dd. Jose Borromeo
ee. Consuelo Borromeo
ff. Pilar Borromeo
gg. Salud Borromeo
hh. Patrocinio Borromeo Herrera
c. Maximo Borromeo, who died in July,
1948
d. Matilde Borromeo, who died on Aug. 6,
1946
e. Andres Borromeo, who died on Jan. 3,
1923, but survived by his children:
aa. Maria Borromeo Atega
bb. Luz Borromeo
cc. Hermenegilda Borromeo
Nonnenkamp
dd. Rosario Borromeo
ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972
of the Civil Code, issued an order declaring the
following, to the exclusion of all others, as the
intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
on 2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera
5. Salud Borromeo
6. Asuncion Borromeo
7. Marcial Borromeo
8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo
The court also ordered that the assets of the
intestate estate of Vito Borromeo shall be divided
into 4/9 and 5/9 groups and distributed in equal
and equitable shares among the 9 abovenamed
declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with
the exception of Patrocinio B. Herrera, signed an
agreement of partition of the properties of the
deceased Vito Borromeo which was approved by
the trial court, in its order of August 15, 1969. In
this same order, the trial court ordered the
administrator, Atty Jesus Gaboya, Jr., to partition
the properties of the deceased in the way and
manner they are divided and partitioned in the
said Agreement of Partition and further ordered
that 40% of the market value of the 4/9 and 5/9 of
the estate shall be segregated. All attorney's fees
shall be taken and paid from this segregated
portion.
On August 25, 1972, respondent Fortunato
Borromeo, who had earlier claimed as heir under
the forged will, filed a motion before the trial court
praying that he be declared as one of the heirs of
the deceased Vito Borromeo, alleging that he is
an illegitimate son of the deceased and that in the
declaration of heirs made by the trial court, he
was omitted, in disregard of the law making him a
forced heir entitled to receive a legitime like all
other forced heirs. As an acknowledged
illegitimate child, he stated that he was entitled to
a legitime equal in every case to four-fifths of the
legitime of an acknowledged natural child.
Finding that the motion of Fortunato Borromeo
was already barred by the order of the court dated
April 12, 1969 declaring the persons named
therein as the legal heirs of the deceased Vito
Borromeo, the court dismissed the motion on
June 25, 1973.
Fortunato Borromeo filed a motion for
reconsideration. In the memorandum he
submitted to support his motion for
reconsideration, Fortunato changed the basis for
his claim to a portion of the estate. He asserted
and incorporated a Waiver of Hereditary Rights
dated July 31, 1967, supposedly signed by Pilar
N. Borromeo, Maria B. Putong, Jose Borromeo,
Canuto V. Borromeo, Jr., Salud Borromeo,
Patrocinio Borromeo-Herrera, Marcial Borromeo,
Asuncion Borromeo, Federico V. Borromeo,
Consuelo B. Morales, Remedios Alfonso and
Amelinda B. Talam In the waiver, five of the nine
heirs relinquished to Fortunato their shares in the
disputed estate. The motion was opposed on the
ground that the trial court, acting as a probate
court, had no jurisdiction to take cognizance of the
claim; that respondent Fortunato Borromeo is
estopped from asserting the waiver agreement;
that the waiver agreement is void as it was
executed before the declaration of heirs; that the
same is void having been executed before the
distribution of the estate and before the
acceptance of the inheritance; and that it is
void ab initio and inexistent for lack of subject
matter.
On December 24, 1974, after due hearing, the
trial court concluding that the five declared heirs
who signed the waiver agreement assigning their
hereditary rights to Fortunato Borromeo had lost
the same rights, declared the latter as entitled to
5/9 of the estate of Vito Borromeo.
A motion for reconsideration of this order was
denied on July 7, 1975.
In the present petition, the petitioner seeks to
annul and set aside the trial court's order dated
December 24, 1974, declaring respondent
Fortunato Borromeo entitled to 5/9 of the estate of
Vito Borromeo and the July 7, 1975 order,
denying the motion for reconsideration.
The petitioner argues that the trial court had no
jurisdiction to take cognizance of the claim of
respondent Fortunato Borromeo because it is not
a money claim against the decedent but a claim
for properties, real and personal, which constitute
all of the shares of the heirs in the decedent's
estate, heirs who allegedly waived their rights in
his favor. The claim of the private respondent
under the waiver agreement, according to the
petitioner, may be likened to that of a creditor of
the heirs which is improper. He alleges that the
claim of the private respondent under the waiver
agreement was filed beyond the time allowed for
filing of claims as it was filed only sometime in
1973, after there had been a declaration of heirs
(April 10, 1969), an agreement of partition (April
30, 1969), the approval of the agreement of
partition and an order directing the administrator
to partition the estate (August 15, 1969), when in
a mere memorandum, the existence of the waiver
agreement was brought out.
It is further argued by the petitioner that the
document entitled " waiver of Hereditary Rights"
executed on July 31, 1967, aside from having
been cancelled and revoked on June 29, 1968, by
Tomas L. Borromeo, Fortunato Borromeo and
Amelia Borromeo, is without force and effect
because there can be no effective waiver of
hereditary rights before there has been a valid
acceptance of the inheritance the heirs intend to
transfer. Pursuant to Article 1043 of the Civil
Code, to make acceptance or repudiation of
inheritance valid, the person must be certain of
the death of the one from whom he is to inherit
and of his right to the inheritance. Since the
petitioner and her co-heirs were not certain of
their right to the inheritance until they were
declared heirs, their rights were, therefore,
uncertain. This view, according to the petitioner, is
also supported by Article 1057 of the same Code
which directs heirs, devicees, and legatees to
signify their acceptance or repudiation within thirty
days after the court has issued an order for the
distribution of the estate.
Respondent Fortunato Borromeo on the other
hand, contends that under Article 1043 of the Civil
Code there is no need for a person to be first
declared as heir before he can accept or
repudiate an inheritance. What is required is that
he must first be certain of the death of the person
from whom he is to inherit and that he must be
certain of his right to the inheritance. He points out
that at the time of the signing of the waiver
document on July 31, 1967, the signatories to the
waiver document were certain that Vito Borromeo
was already dead as well as of their rights to the
inheritance as shown in the waiver document
itself.
With respect to the issue of jurisdiction of the trial
court to pass upon the validity of the waiver of
hereditary rights, respondent Borromeo asserts
that since the waiver or renunciation of hereditary
rights took place after the court assumed
jurisdiction over the properties of the estate it
partakes of the nature of a partition of the
properties of the estate needing approval of the
court because it was executed in the course of the
proceedings. lie further maintains that the probate
court loses jurisdiction of the estate only after the
payment of all the debts of the estate and the
remaining estate is distributed to those entitled to
the same.
The prevailing jurisprudence on waiver of
hereditary rights is that "the properties included in
an existing inheritance cannot be considered as
belonging to third persons with respect to the
heirs, who by fiction of law continue the
personality of the former. Nor do such properties
have the character of future property, because the
heirs acquire a right to succession from the
moment of the death of the deceased, by principle
established in article 657 and applied by article
661 of the Civil Code, according to which the heirs
succeed the deceased by the mere fact of death.
More or less, time may elapse from the moment of
the death of the deceased until the heirs enter into
possession of the hereditary property, but the
acceptance in any event retroacts to the moment
of the death, in accordance with article 989 of the
Civil Code. The right is vested, although
conditioned upon the adjudication of the
corresponding hereditary portion." (Osorio v.
Osorio and Ynchausti Steamship Co., 41 Phil.,
531). The heirs, therefore, could waive their
hereditary rights in 1967 even if the order to
partition the estate was issued only in 1969.
In this case, however, the purported "Waiver of
Hereditary Rights" cannot be considered to be
effective. For a waiver to exist, three elements are
essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an
intention to relinquish such right. (People v.
Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120).
The intention to waive a right or advantage must
be shown clearly and convincingly, and when the
only proof of intention rests in what a party does,
his act should be so manifestly consistent with,
and indicative of an intent to, voluntarily relinquish
the particular right or advantage that no other
reasonable explanation of his conduct is possible
(67 C.J., 311). (Fernandez v. Sebido, et al., 70
Phil., 151, 159).
The circumstances of this case show that the
signatories to the waiver document did not have
the clear and convincing intention to relinquish
their rights, Thus: (1) On October 27, 1967.
Fortunato, Tomas, and Amelia Borromeo filed a
pleading entitled "Compliance" wherein they
submitted a proposal for the amicable settlement
of the case. In that Compliance, they proposed to
concede to all the eight (8) intestate heirs of Vito
Borromeo all properties, personal and real,
including all cash and sums of money in the
hands of the Special Administrator, as of October
31, 1967, not contested or claimed by them in any
action then pending in the Court of First Instance
of Cebu. In turn, the heirs would waive and
concede to them all the 14 contested lots. In this
document, the respondent recognizes and
concedes that the petitioner, like the other
signatories to the waiver document, is an heir of
the deceased Vito Borromeo, entitled to share in
the estate. This shows that the "Waiver of
Hereditary Rights" was never meant to be what
the respondent now purports it to be. Had the
intent been otherwise, there would not be any
reason for Fortunato, Tomas, and Amelia
Borromeo to mention the heirs in the offer to settle
the case amicably, and offer to concede to them
parts of the estate of the deceased; (2) On April
21 and 30, 1969, the majority of the declared heirs
executed an Agreement on how the estate they
inherited shall be distributed. This Agreement of
Partition was approved by the trial court on
August 15, 1969; (3) On June 29, 1968, the
petitioner, among others, signed a document
entitled Deed of Assignment" purporting to
transfer and assign in favor of the respondent and
Tomas and Amelia Borromeo all her (Patrocinio B.
Herrera's) rights, interests, and participation as an
intestate heir in the estate of the deceased Vito
Borromeo. The stated consideration for said
assignment was P100,000.00; (4) On the same
date, June 29, 1968, the respondent Tomas, and
Amelia Borromeo (assignees in the
aforementioned deed of assignment) in turn
executed a "Deed of Reconveyance" in favor of
the heirs-assignors named in the same deed of
assignment. The stated consideration was
P50,000.00; (5) A Cancellation of Deed of
Assignment and Deed of Reconveyance was
signed by Tomas Borromeo and Amelia Borromeo
on October 15, 1968, while Fortunato Borromeo
signed this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold
that the trial court had jurisdiction to pass upon
the validity of the waiver agreement. It must be
noted that in Special Proceedings No. 916-R the
lower court disallowed the probate of the will and
declared it as fake. Upon appeal, this Court
affirmed the decision of the lower court on March
30, 1967, in G.R. No. L-18498. Subsequently,
several parties came before the lower court filing
claims or petitions alleging themselves as heirs of
the intestate estate of Vito Borromeo. We see no
impediment to the trial court in exercising
jurisdiction and trying the said claims or petitions.
Moreover, the jurisdiction of the trial court extends
to matters incidental and collateral to the exercise
of its recognized powers in handling the
settlement of the estate.
In view of the foregoing, the questioned order of
the trial court dated December 24, 1974, is hereby
SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of
Appeals from an order of the Court of First
Instance of Cebu, Branch 11, dated December 24,
1974, declaring the waiver document earlier
discussed in G.R. No. 41171 valid. The appellate
court certified this case to this Court as the
questions raised are all of law.
The appellants not only assail the validity of the
waiver agreement but they also question the
jurisdiction of the lower court to hear and decide
the action filed by claimant Fortunato Borromeo.
The appellants argue that when the waiver of
hereditary right was executed on July 31, 1967,
Pilar Borromeo and her children did not yet
possess or own any hereditary right in the
intestate estate of the deceased Vito Borromeo
because said hereditary right was only acquired
and owned by them on April 10, 1969, when the
estate was ordered distributed.
They further argue that in contemplation of law,
there is no such contract of waiver of hereditary
right in the present case because there was no
object, which is hereditary right, that could be the
subject matter of said waiver, and, therefore, said
waiver of hereditary right was not only null and
void ab initio but was inexistent.
With respect to the issue of jurisdiction, the
appellants contend that without any formal
pleading filed by the lawyers of Fortunato
Borromeo for the approval of the waiver
agreement and without notice to the parties
concerned, two things which are necessary so
that the lower court would be vested with authority
and jurisdiction to hear and decide the validity of
said waiver agreement, nevertheless, the lower
court set the hearing on September 25, 1973 and
without asking for the requisite pleading. This
resulted in the issuance of the appealed order of
December 24, 1974, which approved the validity
of the waiver agreement. The appellants contend
that this constitutes an error in the exercise of
jurisdiction.
The appellee on the other hand, maintains that by
waiving their hereditary rights in favor of Fortunato
Borromeo, the signatories to the waiver document
tacitly and irrevocably accepted the inheritance
and by virtue of the same act, they lost their rights
because the rights from that moment on became
vested in Fortunato Borromeo.
It is also argued by the appellee that under Article
1043 of the Civil Code there is no need for a
person to be declared as heir first before he can
accept or repudiate an inheritance. What is
required is that he is certain of the death of the
person from whom he is to inherit, and of his right
to the inheritance. At the time of the signing of the
waiver document on July 31, 1967, the signatories
to the waiver document were certain that Vito
Borromeo was already dead and they were also
certain of their right to the inheritance as shown
by the waiver document itself.
On the allegation of the appellants that the lower
court did not acquire jurisdiction over the claim
because of the alleged lack of a pleading invoking
its jurisdiction to decide the claim, the appellee
asserts that on August 23, 1973, the lower court
issued an order specifically calling on all
oppositors to the waiver document to submit their
comments within ten days from notice and setting
the same for hearing on September 25, 1973. The
appellee also avers that the claim as to a 5/9
share in the inheritance involves no question of
title to property and, therefore, the probate court
can decide the question.
The issues in this case are similar to the issues
raised in G.R. No. 41171. The appellants in this
case, who are all declared heirs of the late Vito
Borromeo are contesting the validity of the trial
court's order dated December 24, 1974, declaring
Fortunato Borromeo entitled to 5/9 of the estate of
Vito Borromeo under the waiver agreement.
As stated in G.R. No. 41171, the supposed waiver
of hereditary rights can not be validated. The
essential elements of a waiver, especially the
clear and convincing intention to relinquish
hereditary rights, are not found in this case.
The October 27, 1967 proposal for an amicable
settlement conceding to all the eight (8) intestate
heirs various properties in consideration for the
heirs giving to the respondent and to Tomas, and
Amelia Borromeo the fourteen (14) contested lots
was filed inspite of the fact that on July 31, 1967,
some of the heirs had allegedly already waived or
sold their hereditary rights to the respondent.
The agreement on how the estate is to be
distributed, the June 29, 1968 deed of
assignment, the deed of reconveyance, and the
subsequent cancellation of the deed of
assignment and deed of reconveyance all argue
against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have
already stated in G.R. No. 41171 that the trial
court acquired jurisdiction to pass upon the
validity of the waiver agreement because the trial
court's jurisdiction extends to matters incidental
and collateral to the exercise of its recognized
powers in handling the settlement of the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty.
Raul M. Sesbreno, representative of some of the
heirs-distributees, praying for the immediate
closure of Special Proceeding No. 916-R. A
similar motion dated May 29, 1979 was filed by
Atty. Jose Amadora. Both motions were grounded
on the fact that there was nothing more to be
done after the payment of all the obligations of the
estate since the order of partition and distribution
had long become final.
Alleging that respondent Judge Francisco P.
Burgos failed or refused to resolve the aforesaid
motions, petitioner Jose Cuenco Borromeo-filed a
petition for mandamus before the Court of
Appeals to compel the respondent judge to
terminate and close Special Proceedings No. 916-
R.
Finding that the inaction of the respondent judge
was due to pending motions to compel the
petitioner, as co-administrator, to submit an
inventory of the real properties of the estate and
an accounting of the cash in his hands, pending
claims for attorney's fees, and that mandamus will
not lie to compel the performance of a
discretionary function, the appellate court denied
the petition on May 14, 1982. The petitioner's
motion for reconsideration was likewise denied for
lack of merit. Hence, this petition.
The petitioner's stand is that the inaction of the
respondent judge on the motion filed on April 28,
1972 for the closure of the administration
proceeding cannot be justified by the filing of the
motion for inventory and accounting because the
latter motion was filed only on March 2, 1979. He
claimed that under the then Constitution, it is the
duty of the respondent judge to decide or resolve
a case or matter within three months from the
date of its submission.
The respondents contend that the motion to close
the administration had already been resolved
when the respondent judge cancelled all settings
of all incidents previously set in his court in an
order dated June 4, 1979, pursuant to the
resolution and restraining order issued by the
Court of Appeals enjoining him to maintain status
quo on the case.
As stated in G.R. No. 41171, on April 21 and 30,
1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of
partition of the properties of the deceased Vito
Borromeo which was approved by the trial court,
in its order dated August 15, 1969. In this same
order, the trial court ordered the administrator,
Atty. Jesus Gaboya, Jr., to partition the properties
of the deceased in the way and manner they are
divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the
market value of the 4/9 and 5/9 of the estate shall
be segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco
Burgos dated July 5, 1982, (p. 197, Rollo, G. R.
No. 41171) his court has not finally distributed to
the nine (9) declared heirs the properties due to
the following circumstances:
1. The court's determination of the market
value of the estate in order to segregate
the 40% reserved for attorney's fees;
2. The order of December 24, 1974,
declaring Fortunato Borromeo as
beneficiary of the 5/9 of the estate
because of the waiver agreement signed
by the heirs representing the 5/9 group
which is still pending resolution by this
Court (G.R. No. 4117 1);
3. The refusal of administrator Jose
Cuenco Borromeo to render his
accounting; and
4. The claim of Marcela Villegas for 1/2 of
the estate causing annotations of notices
of lis pendens on the different titles of the
properties of the estate.
Since there are still real properties of the estate
that were not vet distributed to some of the
declared heirs, particularly the 5/9 group of heirs
due to the pending resolution of the waiver
agreement, this Court in its resolution of June 15,
1983, required the judge of the Court of First
Instance of Cebu, Branch 11, to expedite the
determination of Special Proceedings No. 916-R
and ordered the co-administrator Jose Cuenco
Borromeo to submit an inventory of real properties
of the estate and to render an accounting of cash
and bank deposits realized from rents of several
properties.
The matter of attorney's fees shall be discussed in
G.R. No. 65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000,
setting aside the Order of the trial court
dated December 24, 1974;
2. G.R. No. 63818, denying the petition for
review seeking to modify the decision of
 the Intermediate Appellate Court insofar
as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing
the Intestate Estate of Vito Borromeo and
ordering the remand of the case to the
Executive,Judge of the Regional trial
Court of Cebu for re-raffling; and
3. G.R. No. 65995, granting the petition to
restrain the respondents from further
acting on any and all incidents in Special
proceedings No. 916-11 because of the
affirmation of the decision of the
Intermediate Appellate Court in G.R. No.
63818.
the trial court may now terminate and close
Special Proceedings No. 916-R, subject to the
submission of an inventory of the real properties
of the estate and an accounting of the call and
bank deposits of the petitioner, as co-
administrator of the estate, if he has not vet done
so, as required by this Court in its Resolution
dated June 15, 1983. This must be effected with
all deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco
Borromeo and Petra 0. Borromeo filed a motion
for inhibition in the Court of First Instance of Cebu,
Branch 11, presided over by Judge Francisco P.
Burgos to inhibit the judge from further acting in
Special Proceedings No. 916-R. 'The movants
alleged, among others, the following:
x x x           x x x          x x x
6. To keep the agitation to sell moving,
Atty. Antigua filed a motion for the
production of the certificates of title and to
deposit the same with the Branch Clerk of
Court, presumably for the ready inspection
of interested buyers. Said motion was
granted by the Hon. Court in its order of
October 2, 1978 which, however, became
the subject of various motions for
reconsideration from heirs-distributees
who contended that as owners they
cannot be deprived of their titles for the
flimsy reasons advanced by Atty, Antigua.
In view of the motions for reconsideration,
Atty Antigua ultimately withdraw his
motions for production of titles.
7. The incident concerning the production
of titles triggered another incident
involving Atty. Raul H. Sesbreno who was
then the counsel of herein movants Petra
O. Borromeo and Amelinda B. Talam In
connection with said incident, Atty.
Sesbreno filed a pleading which the tion.
presiding, Judge Considered direct
contempt because among others, Atty.
Sesbreno insinuated that the Hon.
Presiding Judge stands to receive "fat
commission" from the sale of the entire
property. Indeed, Atty. Sesbreno was
seriously in danger of being declared in
contempt of court with the dim prospect of
suspension from the practice of his
profession. But obviously to extricate
himself from the prospect of contempt and
suspension. Atty. Sesbreno chose
rapproachment and ultimately joined
forces with Atty. Antigua, et al., who,
together, continued to harass
administrator
x x x           x x x          x x x
9. The herein movants are informed and
so they allege, that a brother of the Hon.
Presiding Judge is married to a sister of
Atty. Domingo L. Antigua.
10. There is now a clear tug of war bet
ween Atty. Antigua, et al. who are
agitating for the sale of the entire estate or
to buy out the individual heirs, on the one
hand, and the herein movants, on the
other, who are not willing to sell their
distributive shares under the terms and
conditions presently proposed. In this tug
of war, a pattern of harassment has
become apparent against the herein
movants, especially Jose Cuenco
Borromeo. Among the harassments
employed by Atty Antigua et al. are the
pending motions for the removal of
administrator Jose Cuenco Borromeo, the
subpoena duces tecum issued to the bank
which seeks to invade into the privacy of
the personal account of Jose Cuenco
 Borromeo, and the other matters
mentioned in paragraph 8 hereof. More
harassment motions are expected until the
herein movants shall finally yield to the
proposed sale. In such a situation, the
herein movants beg for an entirely
independent and impartial judge to pass
upon the merits of said incidents.
11. Should the Hon. Presiding Judge
continue to sit and take cognizance of this
proceeding, including the incidents above-
mentioned, he is liable to be
misunderstood as being biased in favor of
Atty Antigua, et al. and prejudiced against
the herein movants. Incidents which may
create this impression need not be
enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge
Francisco P. Burgos. Their motion for
reconsideration having been denied, the private
respondents filed a petition for certiorari and/or
prohibition with preliminary injunction before the
Intermediate Appellate Court.
In the appellate court, the private respondents
alleged, among others, the following:
x x x           x x x          x x x
16. With all due respect, petitioners regret
the necessity of having to state herein that
respondent Hon. Francisco P. Burgos has
shown undue interest in pursing the sale
initiated by Atty. Domingo L. Antigua, et al.
Significantly, a brother of respondent Hon.
Francisco P. Burgos is married to a sister
of Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the
entire properties of the estate cannot be
legally done without the conformity of the
heirs-distributees because the certificates
of title are already registered in their
names Hence, in pursuit of the agitation to
sell, respondent Hon. Francisco P. Burgos
urged the heirs-distributees to sell the
entire property based on the rationale that
proceeds thereof deposited in the bank
will earn interest more than the present
income of the so called estate. Most of the
heirs-distributees, however. have been
petitioner timid to say their piece. Only the
4/9 group of heirs led by Jose Cuenco
Borromeo have had the courage to stand
up and refuse the proposal to sell clearly
favored by respondent Hon. Francisco P.
Burgos.
x x x           x x x          x x x
20. Petitioners will refrain from discussing
herein the merits of the shotgun motion of
Atty. Domingo L. Antigua as well as other
incidents now pending in the court below
which smack of harassment against the
herein petitioners. For, regardless of the
merits of said incidents, petitioners
respectfully contend that it is highly
improper for respondent Hon. Francisco
P. Burgos to continue to preside over Sp.
Proc. No. 916-R by reason of the following
circumstances:
(a) He has shown undue interest
in the sale of the properties as
initiated by Atty. Domingo L.
Antigua whose sister is married to
a brother of respondent.
(b) The proposed sale cannot be
legally done without the conformity
of the heirs-distributees, and
petitioners have openly refused
the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty.
Antigua and similar incidents are
clearly intended to harass and
embarrass administrator Jose
Cuenco Borromeo in order to
pressure him into acceding to the
proposed sale.
(d) Respondent has shown bias
and prejudice against petitioners
by failing to resolve the claim for
attorney's fees filed by Jose
Cuenco Borromeo and the late
Crispin Borromeo. Similar claims
by the other lawyers were resolved
by respondent after petitioners
 refused the proposed sale. (pp.
41-43, Rollo)
On March 1, 1983, the appellate court rendered
its decision granting the petition for certiorari
and/or prohibition and disqualifying Judge
Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916-R.
The court also ordered the transmission of the
records of the case to the Executive Judge of the
Regional Trial Court of Region VII for re-raffling.
A motion for reconsideration of the decision was
denied by the appellate court on April 11, 1983.
Hence, the present petition for review seeking to
modify the decision of the Intermediate Appellate
Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the case
of Intestate Estate of Vito Borromeo and orders
the remand of the case to the Executive Judge of
the Regional Trial Court of Cebu for re-raffling.
The principal issue in this case has become moot
and academic because Judge Francisco P.
Burgos decided to retire from the Regional Trial
Court of Cebu sometime before the latest
reorganization of the judiciary. However, we
decide the petition on its merits for the guidance
of the judge to whom this case will be reassigned
and others concerned.
The petitioners deny that respondent Jose
Cuenco Borromeo has been harassed. They
contend that Judge Burgos has benn shown
unusual interest in the proposed sale of the entire
estate for P6,700,000.00 in favor of the buyers of
Atty. Antigua. They claim that this disinterest is
shown by the judge's order of March 2, 1979
assessing the property of the estate at
P15,000,000.00. They add that he only ordered
the administrator to sell so much of the properties
of the estate to pay the attorney's fees of the
lawyers-claimants. To them, the inhibition of
Judge Burgos would have been unreasonable
because his orders against the failure of Jose
Cuenco Borromeo, as administrator, to give an
accounting and inventory of the estate were all
affirmed by the appellate court. They claim that
the respondent court, should also have taken
judicial notice of the resolution of this Court
directing the said judge to "expedite the
settlement and adjudication of the case" in G.R.
No. 54232. And finally, they state that the
disqualification of judge Burgos would delay
further the closing of the administration
proceeding as he is the only judge who is
conversant with the 47 volumes of the records of
the case.
Respondent Jose Cuenco Borromeo, to show that
he had been harassed. countered that Judge
Burgos appointed Ricardo V. Reyes as co-
administrator of the estate on October 11, 1972,
yet Borromeo was singled out to make an
accounting of what t he was supposed to have
received as rentals for the land upon which the
Juliana Trade Center is erected, from January,
1977 to February 1982, inclusive, without
mentioning the withholding tax for the Bureau of
Internal Revenue. In order to bolster the agitation
to sell as proposed by Domingo L. Antigua, Judge
Burgos invited Antonio Barredo, Jr., to a series of
conferences from February 26 to 28, 1979. During
the conferences, Atty. Antonio Barredo, Jr.,
offered to buy the shares of the heirs-distributees
presumably to cover up the projected sale initiated
by Atty. Antigua.
On March 2, 1979, or two days after the
conferences, a motion was filed by petitioner
Domingo L. Antigua praying that Jose Cuenco
Borromeo be required to file an inventory when he
has already filed one to account for cash, a report
on which the administrators had already rendered:
and to appear and be examined under oath in a
proceeding conducted by Judge Burgos lt was
also prayed that subpoena duces tecum be issued
for the appearance of the Manager of the
Consolidated Bank and Trust Co., bringing all the
bank records in the name of Jose Cuenco
Borromeo jointly with his wife as well as the
appearance of heirs-distributees Amelinda
Borromeo Talam and another heir distributee
Vitaliana Borromeo. Simultaneously with the filing
of the motion of Domingo Antigua, Atty. Raul H.
Sesbreno filed a request for the issuance of
subpoena duces tecum to the Manager of
Consolidated Bank and 'Trust Co., Inc.; Register
of Deeds of Cebu City; Register of Deeds for the
Province of Cebu and another subpoena duces
tecum to Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court
issued a subpoena duces tecum to the Managert
of the bank, the Register of deeds for the City of
Cebu, the Register of Deeds for the Province, of
Cebu. and to Jose Cuenco Borromeo.
On the following day, March 3, 1979, Atty
Gaudioso v. Villagonzalo in behalf of the heirs of
Marcial Borromeo who had a common cause with
Atty Barredo, Jr., joined petitioner Domingo L.
Antigua by filing a motion for relief of the
administrator.
On March 5, 1979, Atty. Villagonzalo filed a
request for the issuance of a subpoena duces
tecum to private respondent Jose Cuenco
Borromeo to bring and produce all the owners"
copies of the titles in the court presided order by
Judge Burgos.
Consequently. the Branch Clerk of Court issued a
subpoena duces tecum commanding Atty. Jose
Cuenco Borromeo to bring and produce the titles
in court.
All the above-incidents were set for hearing on
June 7, 1979 but on June 14, 1979, before the
date of the hearing, Judge Burgos issued an order
denying the private respondents' motion for
reconsideration and the motion to quash the
subpoena.
1avvphi1
It was further argued by the private respondents
that if ,judge Francisco P. Burgos is not inhibited
or disqualified from trying Sp. Proc. No. 916-R,
there would be a miscarriage of justice Because
for the past twelve years, he had not done
anything towards the closure of the estate
proceedings except to sell the properties of the
heirs-distributees as initiated by petitioner
Domingo L. Antigua at 6.7 million pesos while the
Intestate Court had already evaluated it at 15
million pesos.
The allegations of the private respondents in their
motion for inhibition, more specifically, the
insistence of the trial judge to sell the entire estate
at P6,700,000.00, where 4/9 group of heirs
objected, cannot easily be ignored. Suspicion of
partiality on the part of a trial judge must be
avoided at all costs. In the case of Bautista v.
Rebeuno (81 SCRA 535), this Court stated:
... The Judge must maintain and preserve
the trust and faith of the parties litigants.
He must hold himself above reproach and
suspicion. At the very first sign of lack of
faith and trust to his actions, whether well
grounded or not, the Judge has no other
alternative but inhibit himself from the
case. A judge may not be legally
Prohibited from sitting in a litigation, but
when circumstances appear that will
induce doubt to his honest actuations and
probity in favor or of either partly or incite
such state of mind, he should conduct a
careful self-examination. He should
exercise his discretion in a way that the
people's faith in the Courts of Justice is
not impaired, "The better course for the
Judge under such circumstances is to
disqualify himself "That way he avoids
being misunderstood, his reputation for
probity and objectivity is preserve ed. what
is more important, the Ideal of impartial
administration of justice is lived up to.
In this case, the fervent distrust of the private
respondents is based on sound reasons. As
Earlier stated, however, the petition for review
seeking to modify the decision of the Intermediate
Appellate Court insofar as it disqualifies and
inhibits Judge Francisco P. Burgos from further
hearing the Intestate Estate of Vito Borromeo
case and ordering the remand of the case to the
Executive Judge of the Regional Trial Court for re-
raffling should be DENIED for the decision is not
only valid but the issue itself has become moot
and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents
from further acting on any and all incidents in
Special Proceedings No. 916-R during the
pendency of this petition and No. 63818. They
also pray that all acts of the respondents related
to the said special proceedings after March 1,
1983 when the respondent Judge was disqualified
by the appellate court be declared null and void
and without force and effect whatsoever.
The petitioners state that the respondent Judge
has set for hearing all incidents in Special
Proceedings No. 916-R, including the reversion
from the heirs-distributees to the estate, of the
distributed properties already titled in their names
as early as 1970, notwithstanding the pending
inhibition case elevated before this Court which is
docketed as G.R. No. 63818.
The petitioners further argue that the present
status of Special Proceeding No. 916-R requires
only the appraisal of the attorney's fees of the
lawyers-claimants who were individually hired by
their respective heirs-clients, so their attorney's
fees should be legally charged against their
respective clients and not against the estate.
On the other hand, the respondents maintain that
the petition is a dilatory one and barred by res
judicata because this Court on July 8, 1981, in
G.R. No. 54232 directed the respondent Judge to
expedite the settlement and liquidation of the
decedent's estate. They claim that this resolution,
which was already final and executory, was in
effect reversed and nullified by the Intermediate
Appellate Court in its case-AC G.R.-No. SP -
11145 — when it granted the petition for certiorari
and or prohibition and disqualified Judge
Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916R as
well as ordering the transmission of the records of
the case to the Executive Judge of the Regional
Trial Court of Region VII for re-raffling on March 1,
1983, which was appealed to this Court by means
of a Petition for Review (G.R. No. 63818).
We agree with the petitioners' contention that
attorney's fees are not the obligation of the estate
but of the individual heirs who individually hired
their respective lawyers. The portion, therefore, of
the Order of August 15, 1969, segregating the
exhorbitantly excessive amount of 40% of the
market value of the estate from which attorney's
fees shall be taken and paid should be deleted.
Due to our affirmance of the decision of the
Intermediate Appellate Court in G.R. No. 63818,
we grant the petition.
WHEREFORE, —
(1) In G.R. No. 41171, the order of the
respondent judge dated December 24,
1974, declaring the respondent entitled to
5/9 of the estate of the late Vito Borromeo
and the order dated July 7, 1975, denying
the petitioner's motion for reconsideration
of the aforementioned order are hereby
SET ASIDE for being NULL and VOID;
(2) In G.R. No. 55000, the order of the trial
court declaring the waiver document valid
is hereby SET ASIDE;
(3) In G.R. No. 63818, the petition is
hereby DENIED. The issue in the decision
of the Intermediate Appellate Court
disqualifying and ordering the inhibition of
Judge Francisco P. Burgos from further
hearing Special Proceedings No. 916-R is
declared moot and academic. The judge
who has taken over the sala of retired
Judge Francisco P. Burgos shall
immediately conduct hearings with a view
to terminating the proceedings. In the
event that the successor-judge is likewise
disqualified, the order of the Intermediate
Appellate Court directing the Executive
Judge of the Regional Trial Court of Cebu
to re-raffle the case shall be implemented:
(4) In G.R. No. 65995, the petition is
hereby GRANTED. 'The issue seeking to
restrain Judge Francisco P. Burgos from
further acting in G.R. No. 63818 is MOOT
and ACADEMIC:
(5) In G.R, No, 62895, the trial court is
hereby ordered to speedily terminate the
close Special Proceedings No. 916-R,
subject to the submission of an inventory
of the real properties of the estate and an
accounting of the cash and bank deposits
by the petitioner-administrator of the
estate as required by this Court in its
Resolution dated June 15, 1983; and
(6) The portion of the Order of August 15,
1969, segregating 40% of the market
value of the estate from which attorney's
fees shall be taken and paid should be, as
it is hereby DELETED. The lawyers
should collect from the heirs-distributees
who individually hired them, attorney's
fees according to the nature of the
services rendered but in amounts which
should not exceed more than 20% of the
market value of the property the latter
acquired from the estate as beneficiaries.
SO ORDERED. 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
THIRD DIVISION the donated land, and to deposit the proceeds
thereof in a bank, for the convenient disposal of
[G.R. No. 112483. October 8, 1999.] Leoncio. In case of Leoncio’s death, it was
agreed that the balance of the deposit will be
ELOY IMPERIAL, Petitioner, v. COURT OF withdrawn by petitioner to defray burial costs.
APPEALS, REGIONAL TRIAL COURT OF
LEGASPI CITY, CESAR VILLALON, JR., On January 8, 1962, and pending execution of
TERESA VILLALON, ANTONIO VILLALON, the above judgment, Leoncio died, leaving only
AUGUSTO VILLALON, ROBERTO two heirs — the herein petitioner, who is his
VILLALON, RICARDO VILLALON and acknowledged natural son, and an adopted son,
ESTHER VILLALON, Respondents. Victor Imperial. On March 8, 1962, Victor was
substituted in place of Leoncio in the above-
Petitioner seeks to set aside the Decision of the mentioned case, and it was he who moved for
Court of Appeals in C.A.-G.R. CV No. 31976 1 , execution of judgment. On March 15, 1962, the
affirming the Decision of the Regional Trial motion for execution was duly granted.
Court of Legazpi City 2 , which rendered
inofficious the donation made by Leoncio Fifteen years thereafter, or on July 26, 1977,
Imperial in favor of herein petitioner, to the Victor died single and without issue, survived
extent that it impairs the legitime of Victor only by his natural father, Ricardo Villalon, who
Imperial, and ordering petitioner to convey to was a lessee of a portion of the disputed land.
herein private respondents, heirs of said Victor Four years hence, or on September 25, 1981,
Imperial, that portion of the donated land Ricardo died, leaving as his only heirs his two
proportionate to Victor Imperial’s legitime.
chanrobles virtuala wlibrary chanroble s.com:chanrobles.com.ph
children, Cesar and Teresa Villalon.

Leoncio Imperial was the registered owner of a Five years thereafter, or sometime in 1986,
32,837-square meter parcel of land covered by Cesar and Teresa filed a complaint for
Original Certificate of Title No. 200, also known annulment of the donation with the Regional
as Lot 45 of the Cadastral Survey of Albay. On Trial Court of Legazpi City, docketed as Civil
July 7, 1951, Leoncio sold the said lot for P1.00 Case No. 7646. Petitioner moved to dismiss on
to his acknowledged natural son, petitioner the ground of res judicata, by virtue of the
herein, who then acquired title over the land compromise judgment rendered by the Court of
and proceeded to subdivide it into several lots. First Instance of Albay. The trial court granted
Petitioner and private respondents admit that the motion to dismiss, but the Court of Appeals
despite the contract’s designation as one of reversed the trial court’s order and remanded
"Absolute Sale", the transaction was in fact a the case for further proceedings.
donation.
On October 18, 1989, Cesar and Teresa filed
On July 28, 1953, or barely two years after the an amended complaint in the same case, Civil
donation, Leoncio filed a complaint for Case No. 7646, for "Annulment of Documents,
annulment of the said Deed of Absolute Sale, Reconveyance and Recovery of Possession"
docketed as Civil Case No. 1177, in the then with the Regional Trial Court of Legazpi City,
Court of First Instance of Albay, on the ground seeking the nullification of the Deed of Absolute
that he was deceived by petitioner herein into Sale affecting the above property, on grounds
signing the said document. The dispute, of fraud, deceit and inofficiousness. In the
however, was resolved through a compromise amended complaint, it was alleged that
agreement, approved by the Court of First petitioner caused Leoncio to execute the
donation by taking undue advantage of the
latter’s physical weakness and mental
unfitness, and that the conveyance of said
property in favor of petitioner impaired the
legitime of Victor Imperial, their natural brother
and predecessor-in-interest. 4 descendants." cralaw
In his Answer, petitioner: (1) alleged that
Leoncio had conveyed sufficient property to
Victor to cover his legitime, consisting of 563
hectares of agricultural land in Manito, Albay;
(2) reiterated the defense of res judicata, and
(3) raised the additional defenses of
prescription and laches.
Plaintiff Cesar Villalon died on December 26,
1989, while the case was pending in the
Regional Trial Court, and was substituted in this
action by his sons, namely, Antonio, Roberto,
Augusto, Ricardo and Cesar, Jr., all surnamed
Villalon, and his widow, Esther H. Villalon.
The RTC held the donation to be inofficious and
impairing the legitime of Victor, on the basis of
its finding that at the time of Leoncio’s death, he
left no property other than the 32,837-square
meter parcel of land which he had donated to
petitioner. The RTC went on further to state that
petitioner’s allegation that other properties
existed and were inherited by Victor was not
substantiated by the evidence. 5 the Notarial file of Pompeyo B. Calleja which is
The legitime of Victor was determined by the
trial court in this manner: chanrob1es virtual
Considering that the property donated is 32,837
square meters, one half of that or 16,418
square meters becomes the free portion of
Leoncio which could be absorbed in the
donation to defendant. The other half, which is
also 16,418 square meters is where the legitime
of the adopted son Victor Imperial has to be
taken.
The proportion of the legitime of the legitimate
child (including the adopted child) in relation to
the acknowledged natural child (defendant) is
10 is to 5[,] with the acknowledged natural child
getting ½ of the legitime of the legitimate
(adopted) child, in accordance with Art. 895 of
the New Civil Code which provides:
"The legitime of each of the acknowledged
natural children and each of the natural children
by legal fiction shall consist of one-half of the
legitime of each of the legitimate children or
virtua1aw library
From the 16,418 square meters left (after the
free portion has been taken) plaintiffs are
therefore entitled to 10,940 square meters while
defendant gets 5,420 square meters. 6
The trial court likewise held that the applicable
prescriptive period is 30 years under Article
1141 of the Civil Code 7 , reckoned from March
15, 1962, when the writ of execution of the
compromise judgment in Civil Case 1177 was
issued, and that the original complaint having
been filed in 1986, the action has not yet
prescribed. In addition, the trial court regarded
the defense of prescription as having been
waived, this not being one of the issues agreed
upon at pre-trial.
Thus, the dispositive portion of the RTC’s
Decision of December 13, 1990 reads: chanrob1es virtual 1aw library
WHEREFORE, premises considered, the Deed
of Absolute Sale otherwise known as Doc. No.
8; Book No. 14; Page No. 1; Series of 1951 of
considered a donation, is hereby reduced
proportionately insofar as it affected the legitime
1aw library of the late Victor Imperial, which share is
inherited by the plaintiffs herein, to the extent
that plaintiffs are ordered to be given by
defendant a portion of 10,940 square meters
thereof.
In order to avoid further conflict, the 10,940
share to be given to plaintiffs should include the
portion which they are presently occupying, by
virtue of the extended lease to their father
Ricardo Villalon, where the bungalow in
question stands.
The remaining portion to be given to plaintiffs
may come from any other portion that may be
agreed upon by the parties, otherwise, this
court will appoint a commissioner to undertake
chanrobles.com:cralaw:red the partition.

The other 21,897 square meters should go to
the defendant as part of his legitime and by
virtue of the reduced donation.
No pronouncement as to damages as they were
not sufficiently proved.
SO ORDERED. 8 inofficiousness of donation does not, and could
The Court of Appeals affirmed the RTC
Decision in toto.
Before us, petitioner questions the following
findings of respondent court: (1) that there was
no res judicata, there being no identity of parties
and cause of action between the instant case
and Civil Case No. 1177; (2) that private
respondents had a right to question the
donation; (3) that private respondents’ action is
barred by prescription, laches and estoppel;
and (4) that the donation was inofficious and
should be reduced.
It is an indispensable requirement in res
judicata that there be, between the first and
second action, identity of parties, of subject
matter and of cause of action. 9 A perusal of the
records leads us to conclude that there is no
identity of parties and of cause of action as
between Civil Case No. 1177 and Civil Case
No. 7646. Civil Case No. 1177 was instituted by
Leoncio in his capacity as donor of the
questioned donation. While it is true that upon
his death, Victor was substituted as plaintiff of
the action, such does not alter the fact that
Victor’s participation in the case was in
representation of the interests of the original
plaintiff, Leoncio. The purpose behind the rule
on substitution of parties is to ensure that the
deceased party would continue to be properly
represented in the suit through the duly
appointed legal representative of the estate 10 ,
or his heir, as in this case, for which no court
appointment is required. 11 Petitioner’s
argument, therefore, that there is substantial
identity between Leoncio and private
respondents, being heirs and successors-in-
interest of Victor, is unavailing.
Moreover, Leoncio’s cause of action as donor of
the property was fraud, purportedly employed
upon him by petitioner in the execution of the
donation. While the same circumstances of
fraud and deceit are alleged in private
respondents’ complaint, it also raises the
additional ground of inofficiousness of donation.
Contrary to petitioner’s contentions,
not, form part of Leoncio’s cause of action in
Civil Case No. 1177. Inofficiousness as a cause
of action may arise only upon the death of the
donor, as the value of the donation will then be
contrasted with the net value of the estate of the
donor-deceased. 12
Consequently, while in Civil Case No. 1177,
Leoncio sought the revocation in full of the
donation on ground of fraud, the instant case
actually has two alternative causes of action.
First, for fraud and deceit, under the same
circumstances as alleged in Leoncio’s
complaint, which seeks the annulment in full of
the donation, and which the trial court correctly
dismissed because the compromise agreement
in Civil Case No. 1177 served as a ratification
and waiver on the part of Leoncio of whatever
defects in voluntariness and consent may have
been attendant in the making of the donation.
The second cause of action is the alleged
inofficiousness of the donation, resulting in the
impairment of Victor’s legitime, which seeks the
annulment, not of the entire donation, but only
of that portion diminishing the legitime. 13 It is
on the basis of this second cause of action that
private respondents prevailed in the lower
courts.
Petitioner next questions the right of private
respondents to contest the donation. Petitioner
sources his argument from Article 772 of the
Civil Code, thus: chanrob1es virtual 1aw library
Only those who at the time of the donor’s death
have a right to the legitime and their heirs and
successors in interest may ask for the reduction
of inofficious donations. . .
As argued by petitioner, when Leoncio died on
January 8, 1962, it was only Victor who was
entitled to question the donation. However,
instead of filing an action to contest the
donation, Victor asked to be substituted as
plaintiff in Civil Case No. 1177 and even moved
for execution of the compromise judgment
therein. chanroble s.com : virtual
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: chanrob1es virtual
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.
Be that as it may, we find merit in petitioner’s
other assignment of errors. Having ascertained
this action as one for reduction of an inofficious
donation, we cannot sustain the holding of both
the trial court and the Court of Appeals that the
applicable prescriptive period is thirty years,
under Article 1141 of the Civil Code. The sense
of both courts that this case is a "real action
over an immovable" allots undue credence to
private respondents’ description of their
complaint, as one for "Annulment of
Documents, Reconveyance and Recovery of
Possession of Property", which suggests the
law library action to be, in part, a real action enforced by
those with claim of title over the disputed land.
Unfortunately for private respondents, a claim
for legitime does not amount to a claim of title.
In the recent case of Vizconde v. Court of
Appeals 14 , we declared that what is brought
to collation is not the donated property itself, but
the value of the property at the time it was
donated. The rationale for this is that the
donation is a real alienation which conveys
ownership upon its acceptance, hence, any
increase in value or any deterioration or loss
thereof is for the account of the heir or donee.
15
1aw library
What, then, is the prescriptive period for an
action for reduction of an inofficious donation?
The Civil Code specifies the following instances
of reduction or revocation of donations: (1) four
years, in cases of subsequent birth,
appearance, recognition or adoption of a child;
16 (2) four years, for non-compliance with
conditions of the donation; 17 and (3) at any
time during the lifetime of the donor and his
relatives entitled to support, for failure of the
donor to reserve property for his or their
support. 18 Interestingly, donations as in the
instant case, 19 the reduction of which hinges
upon the allegation of impairment of legitime,
are not controlled by a particular prescriptive
period, for which reason we must resort to the
chanrob1es virtual 1aw library ordinary rules of prescription.
Under Article 1144 of the Civil Code, actions
upon an obligation created by law must be
brought within ten years from the time the right
of action accrues. Thus, the ten-year
prescriptive period applies to the obligation to
reduce inofficious donations, required under
Article 771 of the Civil Code, to the extent that
they impair the legitime of compulsory heirs.
From when shall the ten-year period be
reckoned? The case of Mateo v. Lagua, 29
SCRA 864, which involved the reduction for
inofficiousness of a donation propter nuptias,
recognized that the cause of action to enforce a
legitime accrues upon the death of the donor-
decedent. Clearly so, since it is only then that
the net estate may be ascertained and on which
basis, the legitimes may be determined.
It took private respondents 24 years since the
death of Leoncio to initiate this case. The
action, therefore, has long prescribed.
As for the trial court’s holding that the defense
of prescription had been waived, it not being
one of the issues agreed upon at pre-trial,
suffice it to say that while the terms of the pre-
trial order bind the parties as to the matters to
be taken up in trial, it would be the height of
injustice for us to adhere to this technicality
when the fact of prescription is manifest in the
pleadings of the parties, as well as the findings
of fact of the lower courts. 20
A perusal of the factual antecedents reveals
that not only has prescription set in, private
respondents are also guilty of estoppel by
laches. It may be recalled that Leoncio died on
January 8, 1962. Fifteen years later, Victor died,
leaving as his sole heir Ricardo Villalon, who
also died four years later. While Victor was
alive, he gave no indication of any interest to
contest the donation of his deceased father. As
we have discussed earlier, the fact that he
actively participated in Civil Case No. 1177 did
not amount to a renunciation of his inheritance
and does not preclude him from bringing an
action to claim his legitime. These are matters
that Victor could not possibly be unaware of,
considering that he is a lawyer. 21 Ricardo
Villalon was even a lessee of a portion of the
donated property, and could have instituted the
action as sole heir of his natural son, or at the
very least, raised the matter of legitime by way
of counterclaim in an ejectment case 22 filed
against him by petitioner in 1979. Neither does
it help private respondents’ cause that five
years have elapsed since the death of Ricardo
in 1981 before they filed their complaint with the
RTC. chanroblesvirtualawlibrary
Estoppel by laches is the failure or neglect for
an unreasonable or unexplained length of time
to do that which, by exercising due diligence,
could or should have been done earlier,
warranting a presumption that the person has
abandoned his right or declined to assert it. 23
We find the necessity for the application of the
principle of estoppel by laches in this case, in
order to avoid an injustice.
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. 24
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; 25 (2) if
such is impracticable, the equivalent value of
the impaired legitime in cash or marketable
securities; 26 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.
We believe this worth mentioning, even as we
grant the petition on grounds of prescription and
laches.
ACCORDINGLY, the decision of the Court of
Appeals in C.A. G.R. CV No. 31976, affirming in
toto the decision of the Regional Trial Court in
Civil Case No. 7646, is reversed and set aside.
No costs.SO ORDERED.