Succession
Opening of Succession | Art. 777
Uson vs. Del Rosario
G.R. No. L-4963 January 29, 1953
MARIA USON, plaintiff-appellee,
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO
NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO
NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of
five (5) parcels of land situated in the Municipality of Labrador,
Province of Pangasinan, filed by Maria Uson against Maria del
Rosario and her four children named Concepcion, Conrado,
Dominador, and Faustino, surnamed Nebreda, who are all of
minor age, before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon
his death in 1945 left the lands involved in this litigation. Faustino
Nebreda left no other heir except his widow Maria Uson.
However, plaintiff claims that when Faustino Nebreda died in
1945, his common-law wife Maria del Rosario took possession
illegally of said lands thus depriving her of their possession and
enjoyment.
Defendants in their answer set up as special defense that on
February 21, 1931, Maria Uson and her husband, the late
Faustino Nebreda, executed a public document whereby they
agreed to separate as husband and wife and, in consideration of
their separation, Maria Uson was given a parcel of land by way
of alimony and in return she renounced her right to inherit any
other property that may be left by her husband upon his death
(Exhibit 1).
After trial, at which both parties presented their respective
evidence, the court rendered decision ordering the defendants to
restore to the plaintiff the ownership and possession of the lands
in dispute without special pronouncement as to costs.
Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the
lawful wife of Faustino Nebreda, former owner of the five parcels
of lands litigated in the present case. There is likewise no dispute
that Maria del Rosario, one of the defendants-appellants, was
merely a common-law wife of the late Faustino Nebreda with
whom she had four illegitimate children, her now co-defendants.
It likewise appears that Faustino Nebreda died in 1945 much
prior to the effectivity of the new Civil Code. With this
background, it is evident that when Faustino Nebreda died in
1945 the five parcels of land he was seized of at the time passed
from the moment of his death to his only heir, his widow Maria
Uson (Article 657, old Civil Code).As this Court aptly said, "The
property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and
delivered to them a deed for the same before his death" (Ilustre
vs. Alaras Frondosa, 17 Phil., 321). From that moment,
therefore, the rights of inheritance of Maria Uson over the lands
in question became vested.
The claim of the defendants that Maria Uson had relinquished
her right over the lands in question because she expressly
renounced to inherit any future property that her husband may
acquire and leave upon his death in the deed of separation they
had entered into on February 21, 1931, cannot be entertained for
the simple reason that future inheritance cannot be the subject of
a contract nor can it be renounced (1 Manresa, 123, sixth
edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and
Ynchausti Steamship Co., 41 Phil., 531).
Page 1 of 18
But defendants contend that, while it is true that the four minor
defendants are illegitimate children of the late Faustino Nebreda
and under the old Civil Code are not entitled to any successional
rights, however, under the new Civil Code which became in force
in June, 1950, they are given the status and rights of natural
children and are entitled to the successional rights which the law
accords to the latter (article 2264 and article 287, new Civil
Code), and because these successional rights were declared for
the first time in the new code, they shall be given retroactive
effect even though the event which gave rise to them may have
occurred under the prior legislation (Article 2253, new Civil
Code).
There is no merit in this claim. Article 2253 above referred to
provides indeed that rights which are declared for the first time
shall have retroactive effect even though the event which gave
rise to them may have occurred under the former legislation, but
this is so only when the new rights do not prejudice any vested
or acquired right of the same origin. Thus, said article provides
that "if a right should be declared for the first time in this Code, it
shall be effective at once, even though the act or event which
gives rise thereto may have been done or may have occurred
under the prior legislation, provided said new right does not
prejudice or impair any vested or acquired right, of the same
origin." As already stated in the early part of this decision, the
right of ownership of Maria Uson over the lands in question
became vested in 1945 upon the death of her late husband and
this is so because of the imperative provision of the law which
commands that the rights to succession are transmitted from the
moment of death (Article 657, old Civil Code). The new right
recognized by the new Civil Code in favor of the illegitimate
children of the deceased cannot, therefore, be asserted to the
impairment of the vested right of Maria Uson over the lands in
dispute.
As regards the claim that Maria Uson, while her deceased
husband was lying in state, in a gesture of pity or compassion,
agreed to assign the lands in question to the minor children for
the reason that they were acquired while the deceased was
living with their mother and Maria Uson wanted to assuage
somewhat the wrong she has done to them, this much can be
said; apart from the fact that this claim is disputed, we are of the
opinion that said assignment, if any, partakes of the nature of a
donation of real property, inasmuch as it involves no material
consideration, and in order that it may be valid it shall be made in
a public document and must be accepted either in the same
document or in a separate one (Article 633, old Civil Code).
Inasmuch as this essential formality has not been followed, it
results that the alleged assignment or donation has no valid
effect.
WHEREFORE, the decision appealed from is affirmed, without
costs.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor,
Reyes, Jugo and Labrador, JJ., concur.
De Borja vs. De Borja
G.R. No. L-28040 August 18, 1972
TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA,
administrator-appellee; JOSE DE BORJA, as administrator,
CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO
DE BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the
Testate Estate of Francisco de Borja, appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA,
TASIANA O. VDA. DE DE BORJA, special Administratrix
appellee,

vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate
Estate of the late Francisco de Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the
late Josefa Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-
appellant.
REYES, J.B.L., J.:p
Of these cases, the first, numbered L-28040 is an appeal by
Tasiana Ongsingco Vda. de de Borja, special administratrix of
the testate estate of Francisco de Borja,1 from the approval of a
compromise agreement by the Court of First Instance of Rizal,
Branch I, in its Special Proceeding No. R-7866, entitled, "Testate
Estate of Josefa Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from
the disapproval of the same compromise agreement by the Court
of First Instance of Nueva Ecija, Branch II, in its Special
Proceeding No. 832, entitled, "Testate Estate of Francisco de
Borja, Tasiana O. Vda. de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de
Borja from the decision of the Court of First Instance of Rizal,
Branch X, in its Civil Case No. 7452, declaring the Hacienda
Jalajala Poblacion, which is the main object of the aforesaid
compromise agreement, as the separate and exclusive property
of the late Francisco de Borja and not a conjugal asset of the
community with his first wife, Josefa Tangco, and that said
hacienda pertains exclusively to his testate estate, which is
under administrator in Special Proceeding No. 832 of the Court
of First Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of his
wife Josefa Tangco on 6 October 1940, filed a petition for the
probate of her will which was docketed as Special Proceeding
No. R-7866 of the Court of First Instance of Rizal, Branch I. The
will was probated on 2 April 1941. In 1946, Francisco de Borja
was appointed executor and administrator: in 1952, their son,
Jose de Borja, was appointed co-administrator. When Francisco
died, on 14 April 1954, Jose became the sole administrator of
the testate estate of his mother, Josefa Tangco. While a widower
Francisco de Borja allegedly took unto himself a second wife,
Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted
testate proceedings in the Court of First Instance of Nueva Ecija,
where, in 1955, she was appointed special administratrix. The
Page 2 of 18
Succession
Opening of Succession | Art. 777
validity of Tasiana's marriage to Francisco was questioned in
said proceeding.
The relationship between the children of the first marriage and
Tasiana Ongsingco has been plagued with several court suits
and counter-suits; including the three cases at bar, some
eighteen (18) cases remain pending determination in the courts.
The testate estate of Josefa Tangco alone has been unsettled
for more than a quarter of a century. In order to put an end to all
these litigations, a compromise agreement was entered into on
12 October 1963,2 by and between "[T]he heir and son of
Francisco de Borja by his first marriage, namely, Jose de Borja
personally and as administrator of the Testate Estate of Josefa
Tangco," and "[T]he heir and surviving spouse of Francisco de
Borja by his second marriage, Tasiana Ongsingco Vda. de Borja,
assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and
conditions of the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage,
namely, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja, assisted by
her lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein terminate
and settle, with finality, the various court litigations,
controversies, claims, counterclaims, etc., between them in
connection with the administration, settlement, partition,
adjudication and distribution of the assets as well as liabilities of
the estates of Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja.
THAT with this end in view, the parties herein have agreed
voluntarily and without any reservations to enter into and execute
this agreement under the following terms and conditions:
1. That the parties agree to sell the Poblacion portion of the
Jalajala properties situated in Jalajala, Rizal, presently under
administration in the Testate Estate of Josefa Tangco (Sp. Proc.
No. 7866, Rizal), more specifically described as follows:
Linda al Norte con el Rio Puwang que la separa de la
jurisdiccion del Municipio de Pililla de la Provincia de Rizal, y con
el pico del Monte Zambrano; al Oeste con Laguna de Bay; por el
Sur con los herederos de Marcelo de Borja; y por el Este con los
terrenos de la Familia Maronilla
with a segregated area of approximately 1,313 hectares at the
amount of P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself to pay
Tasiana Ongsingco Vda. de de Borja the total amount of Eight
Hundred Thousand Pesos (P800,000) Philippine Currency, in
cash, which represent P200,000 as his share in the payment and
P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and
Matilde, all surnamed de Borja and this shall be considered as
full and complete payment and settlement of her hereditary
share in the estate of the late Francisco de Borja as well as the
estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp.
Proc. No. 7866-Rizal, respectively, and to any properties
bequeathed or devised in her favor by the late Francisco de
Borja by Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for consideration or
otherwise. The funds for this payment shall be taken from and

shall depend upon the receipt of full payment of the proceeds of
the sale of Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby assumes
payment of that particular obligation incurred by the late
Francisco de Borja in favor of the Rehabilitation Finance
Corporation, now Development Bank of the Philippines,
amounting to approximately P30,000.00 and also assumes
payment of her 1/5 share of the Estate and Inheritance taxes on
the Estate of the late Francisco de Borja or the sum of
P3,500.00, more or less, which shall be deducted by the buyer of
Jalajala, "Poblacion" from the payment to be made to Tasiana
Ongsingco Vda. de Borja under paragraph 2 of this Agreement
and paid directly to the Development Bank of the Philippines and
the heirs-children of Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is hereby
authorized to pay directly to Tasiana Ongsingco Vda. de de
Borja the balance of the payment due her under paragraph 2 of
this Agreement (approximately P766,500.00) and issue in the
name of Tasiana Ongsingco Vda. de de Borja, corresponding
certified checks/treasury warrants, who, in turn, will issue the
corresponding receipt to Jose de Borja.
5. In consideration of above payment to Tasiana Ongsingco Vda.
de de Borja, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda.
de de Borja, for themselves and for their heirs, successors,
executors, administrators, and assigns, hereby forever mutually
renounce, withdraw, waive, remise, release and discharge any
and all manner of action or actions, cause or causes of action,
suits, debts, sum or sums of money, accounts, damages, claims
and demands whatsoever, in law or in equity, which they ever
had, or now have or may have against each other, more
specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and
Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva
Ecija and Civil Case No. 7452-CFI, Rizal, as well as the case
filed against Manuel Quijal for perjury with the Provincial Fiscal
of Rizal, the intention being to completely, absolutely and finally
release each other, their heirs, successors, and assigns, from
any and all liability, arising wholly or partially, directly or
indirectly, from the administration, settlement, and distribution of
the assets as well as liabilities of the estates of Francisco de
Borja and Josefa Tangco, first spouse of Francisco de Borja, and
lastly, Tasiana Ongsingco Vda. de de Borja expressly and
specifically renounce absolutely her rights as heir over any
hereditary share in the estate of Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the
payment under paragraph 4 hereof, shall deliver to the heir Jose
de Borja all the papers, titles and documents belonging to
Francisco de Borja which are in her possession and said heir
Jose de Borja shall issue in turn the corresponding receive
thereof.
7. That this agreement shall take effect only upon the fulfillment
of the sale of the properties mentioned under paragraph 1 of this
agreement and upon receipt of the total and full payment of the
proceeds of the sale of the Jalajala property "Poblacion",
otherwise, the non-fulfillment of the said sale will render this
instrument NULL AND VOID AND WITHOUT EFFECT
THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set
their hands in the City of Manila, Philippines, the 12th of October,
1963.
On 16 May 1966, Jose de Borja submitted for Court approval the
agreement of 12 October 1963 to the Court of First Instance of
Rizal, in Special Proceeding No. R-7866; and again, on 8 August
1966, to the Court of First Instance of Nueva Ecija, in Special
Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja
opposed in both instances. The Rizal court approved the
compromise agreement, but the Nueva Ecija court declared it
Page 3 of 18
Succession
Opening of Succession | Art. 777
void and unenforceable. Special administratrix Tasiana
Ongsingco Vda. de de Borja appealed the Rizal Court's order of
approval (now Supreme Court G.R. case No. L-28040), while
administrator Jose de Borja appealed the order of disapproval
(G.R. case No. L-28568) by the Court of First Instance of Nueva
Ecija.
The genuineness and due execution of the compromised
agreement of 12 October 1963 is not disputed, but its validity is,
nevertheless, attacked by Tasiana Ongsingco on the ground
that: (1) the heirs cannot enter into such kind of agreement
without first probating the will of Francisco de Borja; (2) that the
same involves a compromise on the validity of the marriage
between Francisco de Borja and Tasiana Ongsingco; and (3)
that even if it were valid, it has ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963,
Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on
this Court's decision in Guevara vs. Guevara. 74 Phil. 479,
wherein the Court's majority held the view that the presentation
of a will for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when the
decedent left a will, is against the law and public policy. It is
likewise pointed out by appellant Tasiana Ongsingco that
Section 1 of Rule 74 of the Revised Rules explicitly conditions
the validity of an extrajudicial settlement of a decedent's estate
by agreement between heirs, upon the facts that "(if) the
decedent left no will and no debts, and the heirs are all of age, or
the minors are represented by their judicial and legal
representatives ..." The will of Francisco de Borja having been
submitted to the Nueva Ecija Court and still pending probate
when the 1963 agreement was made, those circumstances, it is
argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise
agreement, Jose de Borja stresses that at the time it was
entered into, on 12 October 1963, the governing provision was
Section 1, Rule 74 of the original Rules of Court of 1940, which
allowed the extrajudicial settlement of the estate of a deceased
person regardless of whether he left a will or not. He also relies
on the dissenting opinion of Justice Moran, in Guevara vs.
Guevara, 74 Phil. 479, wherein was expressed the view that if
the parties have already divided the estate in accordance with a
decedent's will, the probate of the will is a useless ceremony;
and if they have divided the estate in a different manner, the
probate of the will is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to
the case at bar. This is apparent from an examination of the
terms of the agreement between Jose de Borja and Tasiana
Ongsingco. Paragraph 2 of said agreement specifically stipulates
that the sum of P800,000 payable to Tasiana Ongsingco —
shall be considered as full — complete payment — settlement of
her hereditary share in the estate of the late Francisco de Borja
as well as the estate of Josefa Tangco, ... and to any properties
bequeathed or devised in her favor by the late Francisco de
Borja by Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for consideration or
otherwise.
This provision evidences beyond doubt that the ruling in the
Guevara case is not applicable to the cases at bar. There was
here no attempt to settle or distribute the estate of Francisco de
Borja among the heirs thereto before the probate of his will. The
clear object of the contract was merely the conveyance by
Tasiana Ongsingco of any and all her individual share and
interest, actual or eventual in the estate of Francisco de Borja
and Josefa Tangco. There is no stipulation as to any other
claimant, creditor or legatee. And as a hereditary share in a
decedent's estate is transmitted or vested immediately from the
moment of the death of such causante or predecessor in interest
(Civil Code of the Philippines, Art. 777)3 there is no legal bar to a
successor (with requisite contracting capacity) disposing of her

or his hereditary share immediately after such death, even if the
actual extent of such share is not determined until the
subsequent liquidation of the estate.4 Of course, the effect of
such alienation is to be deemed limited to what is ultimately
adjudicated to the vendor heir. However, the aleatory character
of the contract does not affect the validity of the transaction;
neither does the coetaneous agreement that the numerous
litigations between the parties (the approving order of the Rizal
Court enumerates fourteen of them, Rec. App. pp. 79-82) are to
be considered settled and should be dismissed, although such
stipulation, as noted by the Rizal Court, gives the contract the
character of a compromise that the law favors, for obvious
reasons, if only because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the
surviving spouse of Francisco de Borja, Tasiana Ongsingco was
his compulsory heir under article 995 et seq. of the present Civil
Code. Wherefore, barring unworthiness or valid disinheritance,
her successional interest existed independent of Francisco de
Borja's last will and testament and would exist even if such will
were not probated at all. Thus, the prerequisite of a previous
probate of the will, as established in the Guevara and analogous
cases, can not apply to the case of Tasiana Ongsingco Vda. de
de Borja.
Since the compromise contract Annex A was entered into by and
between "Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco" on the one hand, and on the
other, "the heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de de Borja", it is
clear that the transaction was binding on both in their individual
capacities, upon the perfection of the contract, even without
previous authority of the Court to enter into the same. The only
difference between an extrajudicial compromise and one that is
submitted and approved by the Court, is that the latter can be
enforced by execution proceedings. Art. 2037 of the Civil Code is
explicit on the point:
8. Art. 2037. A compromise has upon the parties the effect and
authority of res judicata; but there shall be no execution except in
compliance with a judicial compromise.
It is argued by Tasiana Ongsingco that while the agreement
Annex A expressed no definite period for its performance, the
same was intended to have a resolutory period of 60 days for its
effectiveness. In support of such contention, it is averred that
such a limit was expressly stipulated in an agreement in similar
terms entered into by said Ongsingco with the brothers and
sister of Jose de Borja, to wit, Crisanto, Matilde and Cayetano,
all surnamed de Borja, except that the consideration was fixed at
P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39-
46) and which contained the following clause:
III. That this agreement shall take effect only upon the
consummation of the sale of the property mentioned herein and
upon receipt of the total and full payment of the proceeds of the
sale by the herein owner heirs-children of Francisco de Borja,
namely, Crisanto, Cayetano and Matilde, all surnamed de Borja;
Provided that if no sale of the said property mentioned herein is
consummated, or the non-receipt of the purchase price thereof
by the said owners within the period of sixty (60) days from the
date hereof, this agreement will become null and void and of no
further effect.
Ongsingco's argument loses validity when it is considered that
Jose de Borja was not a party to this particular contract (Annex
1), and that the same appears not to have been finalized, since it
bears no date, the day being left blank "this — day of October
1963"; and while signed by the parties, it was not notarized,
although plainly intended to be so done, since it carries a
proposed notarial ratification clause. Furthermore, the
compromise contract with Jose de Borja (Annex A), provides in
its par. 2 heretofore transcribed that of the total consideration of
P800, 000 to be paid to Ongsingco, P600,000 represent the
Page 4 of 18
Succession
Opening of Succession | Art. 777
"prorata share of the heirs Crisanto, Cayetano and Matilde all
surnamed de Borja" which corresponds to the consideration of
P600,000 recited in Annex 1, and that circumstance is proof that
the duly notarized contract entered into wit Jose de Borja under
date 12 October 1963 (Annex A), was designed to absorb and
supersede the separate unformalize agreement with the other
three Borja heirs. Hence, the 60 days resolutory term in the
contract with the latter (Annex 1) not being repeated in Annex A,
can not apply to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the
Hacienda de Jalajala was to be made within sixty days from the
date of the agreement with Jose de Borja's co-heirs (Annex 1)
was plainly omitted in Annex A as improper and ineffective, since
the Hacienda de Jalajala (Poblacion) that was to be sold to raise
the P800,000 to be paid to Ongsingco for her share formed part
of the estate of Francisco de Borja and could not be sold until
authorized by the Probate Court. The Court of First Instance of
Rizal so understood it, and in approving the compromise it fixed
a term of 120 days counted from the finality of the order now
under appeal, for the carrying out by the parties for the terms of
the contract.
This brings us to the plea that the Court of First Instance of Rizal
had no jurisdiction to approve the compromise with Jose de
Borja (Annex A) because Tasiana Ongsingco was not an heir in
the estate of Josefa Tangco pending settlement in the Rizal
Court, but she was an heir of Francisco de Borja, whose estate
was the object of Special Proceeding No. 832 of the Court of
First Instance of Nueva Ecija. This circumstance is irrelevant,
since what was sold by Tasiana Ongsingco was only her
eventual share in the estate of her late husband, not the estate
itself; and as already shown, that eventual share she owned from
the time of Francisco's death and the Court of Nueva Ecija could
not bar her selling it. As owner of her undivided hereditary share,
Tasiana could dispose of it in favor of whomsoever she chose.
Such alienation is expressly recognized and provided for by
article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for
the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale of
the vendor.
If a sale of a hereditary right can be made to a stranger, then a
fortiori sale thereof to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de
Borja (Annex "A") is void because it amounts to a compromise
as to her status and marriage with the late Francisco de Borja.
The point is without merit, for the very opening paragraph of the
agreement with Jose de Borja (Annex "A") describes her as "the
heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself
definite admission of her civil status. There is nothing in the text
of the agreement that would show that this recognition of
Ongsingco's status as the surviving spouse of Francisco de
Borja was only made in consideration of the cession of her
hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the
Court of First Instance of Nueva Ecija in its order of 21
September 1964, in Special Proceedings No. 832 (Amended
Record on Appeal in L-28568, page 157), that the compromise
agreement of 13 October 1963 (Annex "A") had been
abandoned, as shown by the fact that, after its execution, the
Court of First Instance of Nueva Ecija, in its order of 21
September 1964, had declared that "no amicable settlement had
been arrived at by the parties", and that Jose de Borja himself, in
a motion of 17 June 1964, had stated that the proposed
amicable settlement "had failed to materialize".

It is difficult to believe, however, that the amicable settlement
referred to in the order and motion above-mentioned was the
compromise agreement of 13 October 1963, which already had
been formally signed and executed by the parties and duly
notarized. What the record discloses is that some time after its
formalization, Ongsingco had unilaterally attempted to back out
from the compromise agreement, pleading various reasons
restated in the opposition to the Court's approval of Annex "A"
(Record on Appeal, L-20840, page 23): that the same was
invalid because of the lapse of the allegedly intended resolutory
period of 60 days and because the contract was not preceded by
the probate of Francisco de Borja's will, as required by this
Court's Guevarra vs. Guevara ruling; that Annex "A" involved a
compromise affecting Ongsingco's status as wife and widow of
Francisco de Borja, etc., all of which objections have been
already discussed. It was natural that in view of the widow's
attitude, Jose de Borja should attempt to reach a new settlement
or novatory agreement before seeking judicial sanction and
enforcement of Annex "A", since the latter step might ultimately
entail a longer delay in attaining final remedy. That the attempt to
reach another settlement failed is apparent from the letter of
Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of
the brief for appellant Ongsingco in G.R. No. 28040; and it is
more than probable that the order of 21 September 1964 and the
motion of 17 June 1964 referred to the failure of the parties'
quest for a more satisfactory compromise. But the inability to
reach a novatory accord can not invalidate the original
compromise (Annex "A") and justifies the act of Jose de Borja in
finally seeking a court order for its approval and enforcement
from the Court of First Instance of Rizal, which, as heretofore
described, decreed that the agreement be ultimately performed
within 120 days from the finality of the order, now under appeal.
We conclude that in so doing, the Rizal court acted in
accordance with law, and, therefore, its order should be upheld,
while the contrary resolution of the Court of First Instance of
Nueva Ecija should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time
elapsed in the appeal has affected her unfavorably, in that while
the purchasing power of the agreed price of P800,000 has
diminished, the value of the Jalajala property has increased. But
the fact is that her delay in receiving the payment of the agreed
price for her hereditary interest was primarily due to her attempts
to nullify the agreement (Annex "A") she had formally entered
into with the advice of her counsel, Attorney Panaguiton. And as
to the devaluation de facto of our currency, what We said in
Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554,
that "estates would never be settled if there were to be a
revaluation with every subsequent fluctuation in the values of
currency and properties of the estate", is particularly opposite in
the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the
Hacienda de Jalajala (Poblacion), concededly acquired by
Francisco de Borja during his marriage to his first wife, Josefa
Tangco, is the husband's private property (as contended by his
second spouse, Tasiana Ongsingco), or whether it forms part of
the conjugal (ganancial) partnership with Josefa Tangco. The
Court of First Instance of Rizal (Judge Herminio Mariano,
presiding) declared that there was adequate evidence to
overcome the presumption in favor of its conjugal character
established by Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana
Ongsingco and Jose de Borja has become moot and academic,
in view of the conclusion reached by this Court in the two
preceding cases (G.R. No. L-28568), upholding as valid the
cession of Tasiana Ongsingco's eventual share in the estate of
her late husband, Francisco de Borja, for the sum of P800,000
with the accompanying reciprocal quit-claims between the
parties. But as the question may affect the rights of possible
creditors and legatees, its resolution is still imperative.
Page 5 of 18
Succession
Opening of Succession | Art. 777
It is undisputed that the Hacienda Jalajala, of around 4,363
hectares, had been originally acquired jointly by Francisco de
Borja, Bernardo de Borja and Marcelo de Borja and their title
thereto was duly registered in their names as co-owners in Land
Registration Case No. 528 of the province of Rizal, G.L.R.O.
Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently,
in 1931, the Hacienda was partitioned among the co-owners: the
Punta section went to Marcelo de Borja; the Bagombong section
to Bernardo de Borja, and the part in Jalajala proper (Poblacion)
corresponded to Francisco de Borja (V. De Borja vs. De Borja
101 Phil. 911, 932).
The lot allotted to Francisco was described as —
Una Parcela de terreno en Poblacion, Jalajala: N. Puang River;
E. Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna
de Bay; containing an area of 13,488,870 sq. m. more or less,
assessed at P297,410. (Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as
Administratrix of the Testate Estate of Francisco de Borja,
instituted a complaint in the Court of First Instance of Rizal (Civil
Case No. 7452) against Jose de Borja, in his capacity as
Administrator of Josefa Tangco (Francisco de Borja's first wife),
seeking to have the Hacienda above described declared
exclusive private property of Francisco, while in his answer
defendant (now appellant) Jose de Borja claimed that it was
conjugal property of his parents (Francisco de Borja and Josefa
Tangco), conformably to the presumption established by Article
160 of the Philippine Civil Code (reproducing Article 1407 of the
Civil Code of 1889), to the effect that:
Art. 160. All property of the marriage is presumed to belong to
the conjugal partnership, unless it be proved that it pertains
exclusively to the husband or to the wife.
Defendant Jose de Borja further counterclaimed for damages,
compensatory, moral and exemplary, as well as for attorney's
fees.
After trial, the Court of First Instance of Rizal, per Judge
Herminio Mariano, held that the plaintiff had adduced sufficient
evidence to rebut the presumption, and declared the Hacienda
de Jalajala (Poblacion) to be the exclusive private property of the
late Francisco de Borja, and his Administratrix, Tasiana
Ongsingco Vda. de Borja, to be entitled to its possession.
Defendant Jose de Borja then appealed to this Court.
The evidence reveals, and the appealed order admits, that the
character of the Hacienda in question as owned by the conjugal
partnership De Borja-Tangco was solemnly admitted by the late
Francisco de Borja no less than two times: first, in the
Reamended Inventory that, as executor of the estate of his
deceased wife Josefa Tangco, he filed in the Special
Proceedings No. 7866 of the Court of First Instance of Rizal on
23 July 1953 (Exhibit "2"); and again, in the Reamended
Accounting of the same date, also filed in the proceedings
aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de
Borja, herself, as oppositor in the Estate of Josefa Tangco,
submitted therein an inventory dated 7 September 1954 (Exhibit
"3") listing the Jalajala property among the "Conjugal Properties
of the Spouses Francisco de Borja and Josefa Tangco". And
once more, Tasiana Ongsingco, as administratrix of the Estate of
Francisco de Borja, in Special Proceedings No. 832 of the Court
of First Instance of Nueva Ecija, submitted therein in December,
1955, an inventory wherein she listed the Jalajala Hacienda
under the heading "Conjugal Property of the Deceased Spouses
Francisco de Borja and Josefa Tangco, which are in the
possession of the Administrator of the Testate Estate of the
Deceased Josefa Tangco in Special Proceedings No. 7866 of
the Court of First Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that
they are plain admissions against interest made by both

Francisco de Borja and the Administratrix of his estate, in the
course of judicial proceedings in the Rizal and Nueva Ecija
Courts, supporting the legal presumption in favor of the conjugal
community, the Court below declared that the Hacienda de
Jalajala (Poblacion) was not conjugal property, but the private
exclusive property of the late Francisco de Borja. It did so on the
strength of the following evidences: (a) the sworn statement by
Francis de Borja on 6 August 1951 (Exhibit "F") that —
He tomado possession del pedazo de terreno ya delimitado
(equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno
personal y exclusivo (Poblacion de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de
Borja, that the entire Hacienda had been bought at a foreclosure
sale for P40,100.00, of which amount P25,100 was contributed
by Bernardo de Borja and P15,000. by Marcelo de Borja; that
upon receipt of a subsequent demand from the provincial
treasurer for realty taxes the sum of P17,000, Marcelo told his
brother Bernardo that Francisco (son of Marcelo) wanted also to
be a co-owner, and upon Bernardo's assent to the proposal,
Marcelo issue a check for P17,000.00 to pay the back taxes and
said that the amount would represent Francisco's contribution in
the purchase of the Hacienda. The witness further testified that
— of First Instance of Rizal in Case No. L-28040 is hereby affirmed;
Marcelo de Borja said that that money was entrusted to him by
Francisco de Borja when he was still a bachelor and which he
derived from his business transactions. (Hearing, 2 February
1965, t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn
statement overweighed the admissions in the inventories relied
upon by defendant-appellant Jose de Borja since probate courts
can not finally determine questions of ownership of inventoried
property, but that the testimony of Gregorio de Borja showed that
Francisco de Borja acquired his share of the original Hacienda
with his private funds, for which reason that share can not be
regarded as conjugal partnership property, but as exclusive
property of the buyer, pursuant to Article 1396(4) of Civil Code of
1889 and Article 148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of the wife or
of the husband.
We find the conclusions of the lower court to be untenable. In the
first place, witness Gregorio de Borja's testimony as to the
source of the money paid by Francisco for his share was plain
hearsay, hence inadmissible and of no probative value, since he
was merely repeating what Marcelo de Borja had told him
(Gregorio). There is no way of ascertaining the truth of the
statement, since both Marcelo and Francisco de Borja were
already dead when Gregorio testified. In addition, the statement
itself is improbable, since there was no need or occasion for
Marcelo de Borja to explain to Gregorio how and when Francisco
de Borja had earned the P17,000.00 entrusted to Marcelo. A ring
of artificiality is clearly discernible in this portion of Gregorio's
testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted
portion thereof (ante, page 14) does not clearly demonstrate that
the "mi terreno personal y exclusivo (Poblacion de Jalajala,
Rizal) " refers precisely to the Hacienda in question. The
inventories (Exhibits 3 and 4) disclose that there were two real
properties in Jalajala owned by Francisco de Borja, one of
72.038 sq. m., assessed at P44,600, and a much bigger one of
1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala
(Poblacion). To which of these lands did the affidavit of
Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's
characterization of the land as "mi terreno personal y exclusivo"
Page 6 of 18
Succession
Opening of Succession | Art. 777
is plainly self-serving, and not admissible in the absence of cross
examination.
It may be true that the inventories relied upon by defendant-
appellant (Exhibits "2", "3", "4" and "7") are not conclusive on the
conjugal character of the property in question; but as already
noted, they are clear admissions against the pecuniary interest
of the declarants, Francisco de Borja and his executor-widow,
Tasiana Ongsingco, and as such of much greater probative
weight than the self-serving statement of Francisco (Exhibit "F").
Plainly, the legal presumption in favor of the conjugal character
of the Hacienda de Jalajala (Poblacion) now in dispute has not
been rebutted but actually confirmed by proof. Hence, the
appealed order should be reversed and the Hacienda de Jalajala
(Poblacion) declared property of the conjugal partnership of
Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower
court that claims for damages should be ventilated in the
corresponding special proceedings for the settlement of the
estates of the deceased, the same requires no pro
announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court
while those involved in Cases Nos. L-28568 and L-28611 are
reversed and set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee,
Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
Fernando, J., took no part.
Bonilla vs. Barcena
G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor)
and PONCIANO BONILLA (their father) who represents the
minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA
BARCENA, MANUEL BARCENA, AGUSTINA NERI, widow of
JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the
Court of First Instance of Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First
Instance of Abra in Civil Case No. 856, entitled Fortunata
Barcena vs. Leon Barcena, et al., denying the motions for
reconsideration of its order dismissing the complaint in the
aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio
Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla,
instituted a civil action in the Court of First Instance of Abra, to
quiet title over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the
complaint, but before the hearing of the motion to dismiss, the
counsel for the plaintiff moved to amend the complaint in order to
include certain allegations therein. The motion to amend the
complaint was granted and on July 17, 1975, plaintiffs filed their
amended complaint.

On August 4, 1975, the defendants filed another motion to
dismiss the complaint on the ground that Fortunata Barcena is
dead and, therefore, has no legal capacity to sue. Said motion to
dismiss was heard on August 14, 1975. In said hearing, counsel
for the plaintiff confirmed the death of Fortunata Barcena, and
asked for substitution by her minor children and her husband, the
petitioners herein; but the court after the hearing immediately
dismissed the case on the ground that a dead person cannot be
a real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of
the order dismissing the complaint and on August 23, 1975, he
moved to set aside the order of the dismissal pursuant to
Sections 16 and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for
reconsideration filed by counsel for the plaintiff for lack of merit.
On September 1, 1975, counsel for deceased plaintiff filed a
written manifestation praying that the minors Rosalio Bonilla and
Salvacion Bonilla be allowed to substitute their deceased
mother, but the court denied the counsel's prayer for lack of
merit. From the order, counsel for the deceased plaintiff filed a
second motion for reconsideration of the order dismissing the
complaint claiming that the same is in violation of Sections 16
and 17 of Rule 3 of the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its
order dismissing the complaint in Civil Case No. 856 and its
orders denying the motion for reconsideration of said order of
dismissal. While it is true that a person who is dead cannot sue
in court, yet he can be substituted by his heirs in pursuing the
case up to its completion. The records of this case show that the
death of Fortunata Barcena took place on July 9, 1975 while the
complaint was filed on March 31, 1975. This means that when
the complaint was filed on March 31, 1975, Fortunata Barcena
was still alive, and therefore, the court had acquired jurisdiction
over her person. If thereafter she died, the Rules of Court
prescribes the procedure whereby a party who died during the
pendency of the proceeding can be substituted. Under Section
16, Rule 3 of the Rules of Court "whenever a party to a pending
case dies ... it shall be the duty of his attorney to inform the court
promptly of such death ... and to give the name and residence of
his executor, administrator, guardian or other legal
representatives." This duty was complied with by the counsel for
the deceased plaintiff when he manifested before the respondent
Court that Fortunata Barcena died on July 9, 1975 and asked for
the proper substitution of parties in the case. The respondent
Court, however, instead of allowing the substitution, dismissed
the complaint on the ground that a dead person has no legal
personality to sue. This is a grave error. Article 777 of the Civil
Code provides "that the rights to the succession are transmitted
from the moment of the death of the decedent." From the
moment of the death of the decedent, the heirs become the
absolute owners of his property, subject to the rights and
obligations of the decedent, and they cannot be deprived of their
rights thereto except by the methods provided for by law. 3 The
moment of death is the determining factor when the heirs acquire
a definite right to the inheritance whether such right be pure or
contingent. 4 The right of the heirs to the property of the
deceased vests in them even before judicial declaration of their
being heirs in the testate or intestate proceedings. 5 When
Fortunata Barcena, therefore, died her claim or right to the
parcels of land in litigation in Civil Case No. 856, was not
extinguished by her death but was transmitted to her heirs upon
her death. Her heirs have thus acquired interest in the properties
in litigation and became parties in interest in the case. There is,
therefore, no reason for the respondent Court not to allow their
substitution as parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies
and the claim is not thereby extinguished, the court shall order,
upon proper notice, the legal representative of the deceased to
Page 7 of 18
Succession
Opening of Succession | Art. 777
appear and be substituted for the deceased, within such time as
may be granted ... ." The question as to whether an action
survives or not depends on the nature of the action and the
damage sued for. 6 In the causes of action which survive the
wrong complained affects primarily and principally property and
property rights, the injuries to the person being merely incidental,
while in the causes of action which do not survive the injury
complained of is to the person, the property and rights of
property affected being incidental. 7 Following the foregoing
criterion the claim of the deceased plaintiff which is an action to
quiet title over the parcels of land in litigation affects primarily
and principally property and property rights and therefore is one
that survives even after her death. It is, therefore, the duty of the
respondent Court to order the legal representative of the
deceased plaintiff to appear and to be substituted for her. But
what the respondent Court did, upon being informed by the
counsel for the deceased plaintiff that the latter was dead, was to
dismiss the complaint. This should not have been done for under
the same Section 17, Rule 3 of the Rules of Court, it is even the
duty of the court, if the legal representative fails to appear, to
order the opposing party to procure the appointment of a legal
representative of the deceased. In the instant case the
respondent Court did not have to bother ordering the opposing
party to procure the appointment of a legal representative of the
deceased because her counsel has not only asked that the
minor children be substituted for her but also suggested that their
uncle be appointed as guardian ad litem for them because their
father is busy in Manila earning a living for the family. But the
respondent Court refused the request for substitution on the
ground that the children were still minors and cannot sue in
court. This is another grave error because the respondent Court
ought to have known that under the same Section 17, Rule 3 of
the Rules of Court, the court is directed to appoint a guardian ad
litem for the minor heirs. Precisely in the instant case, the
counsel for the deceased plaintiff has suggested to the
respondent Court that the uncle of the minors be appointed to
act as guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in not
complying with the clear provision of the Rules of Court in
dismissing the complaint of the plaintiff in Civil Case No. 856 and
refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent
Court dismissing the complaint in Civil Case No. 856 of the Court
of First Instance of Abra and the motions for reconsideration of
the order of dismissal of said complaint are set aside and the
respondent Court is hereby directed to allow the substitution of
the minor children, who are the petitioners therein for the
deceased plaintiff and to appoint a qualified person as guardian
ad litem for them. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muñoz Palma,
JJ., concur.
FOOTNOTES
Which this Court treats as special civil action as per its
Resolution dated February 11, 1976.
Section 16. Duty of Attorney upon which death, incapacity or
incompetency of party. - Whenever a party to a pending case
dies, becomes incapacitated or incompetent, it shall be the duty
of his attorney to inform the court promptly of such death,
incapacity or incompetency, and to give the name and residence
of his executor, administrator, guardian or other legal
representative.
Section 17. Death of party.—After a party dies and the claim is
not thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear and to
be substituted for deceased, within a period of thirty (30) days, or
within such time as may be granted. If the legal representative

fails to appear within said time, the court may order the opposing
party to procure the appointment of a legal representative of the
within a time to be specified by the court, and the representative
shall immediately appear for and on behalf of the interest of the
deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be
recovered as costs. The heirs of the deceased may be allowed
to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may
appoint guardian ad litem for the minor heirs.
Borromeo-Herrera vs. Borromeo
G.R. No. L-41171 July 23, 1987
INTESTATE ESTATE OF THE LATE VITO BORROMEO,
PATROCINIO BORROMEO-HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P.
BURGOS, Judge of the Court of First Instance of Cebu, Branch
II, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-55000 July 23, 1987
IN THE MATTER OF THE ESTATE OF VITO BORROMEO,
DECEASED, PILAR N. BORROMEO, MARIA B. PUTONG,
FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO
B. MORALES, AND CANUTO V. BORROMEO, JR., heirs-
appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-62895 July 23, 1987
JOSE CUENCO BORROMEO, petitioner,
vs.
HONORABLE COURT OF APPEALS, HON. FRANCISCO P.
BURGOS, As presiding Judge of the (now) Regional Trial Court,
Branch XV, Region VII, RICARDO V. REYES, as Administrator
of the Estate of Vito Borromeo in Sp. Proc. No. 916-R,
NUMERIANO G. ESTENZO and DOMINGO L. ANTIGUA,
respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-63818 July 23, 1987
DOMINGO ANTIGUA AND RICARDO V. REYES, as
Administrator of the Intestate Estate of VITO BORROMEO, Sp.
Proceedings No. 916-R, Regional Trial Court of Cebu, joined by
HON. JUDGE FRANCISCO P. BURGOS, as Presiding Judge of
Branch XV of the Regional Trial Court of Cebu, as a formal party,
and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and
NUMERIANO ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE
CUENCO BORROMEO, and PETRA O. BORROMEO,
respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-65995 July 23, 1987
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA
BORROMEO, and JOSE CUENCO BORROMEO, petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of
Branch XV, Regional Trial Court of Cebu; RICARDO V. REYES,
Administrator of the Estate of VITO BORROMEO in Sp. Proc.
No. 916-R; and DOMINGO L. ANTIGUA, respondents.
Page 8 of 18
Succession
Opening of Succession | Art. 777
GUTIERREZ, JR., J.:
These cases before us all stem from SP. PROC. NO. 916-R of
the then Court of First Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City,
died on March 13, 1952, in Paranaque, Rizal at the age of 88
years, without forced heirs but leaving extensive properties in the
province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First
Instance of Cebu a petition for the probate of a one page
document as the last will and testament left by the said
deceased, devising all his properties to Tomas, Fortunato and
Amelia, all surnamed Borromeo, in equal and undivided shares,
and designating Junquera as executor thereof. The case was
docketed as Special Proceedings No. 916-R. The document,
drafted in Spanish, was allegedly signed and thumbmarked by
the deceased in the presence of Cornelio Gandionco, Eusebio
Cabiluna, and Felixberto Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. 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 on 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.
Page 9 of 18
Succession
Opening of Succession | Art. 777
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
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
Page 10 of 18
Succession
Opening of Succession | Art. 777
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
Page 11 of 18
Succession
Opening of Succession | Art. 777
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.
Page 12 of 18
Succession
Opening of Succession | Art. 777
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:
xxx xxx xxx
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
xxx xxx xxx
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:
xxx xxx xxx
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.
xxx xxx xxx
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
Page 13 of 18
Succession
Opening of Succession | Art. 777
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
Page 14 of 18
Succession
Opening of Succession | Art. 777
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.
Feliciano, Bidin and Cortes, JJ., concur.
Fernan (Chairman), took no part.
Rioferio vs. CA
G.R. No. 129008 January 13, 2004
TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA
assisted by her husband ZALDY EVANGELISTA, ALBERTO
ORFINADA, and ROWENA O. UNGOS, assisted by her
husband BEDA UNGOS, petitioners,
vs.
COURT OF APPEALS, ESPERANZA P. ORFINADA, LOURDES
P. ORFINADA, ALFONSO ORFINADA, NANCY P. ORFINADA,
ALFONSO JAMES P. ORFINADA, CHRISTOPHER P.
ORFINADA and ANGELO P. ORFINADA, respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of the
estate pending the appointment of an administrator is the issue
in this case.
This Petition for Review on Certiorari, under Rule 45 of the Rules
of Court, seeks to set aside the Decision1 of the Court of
Appeals in CA-G.R. SP No. 42053 dated January 31, 1997, as
well as its Resolution2 dated March 26, 1997, denying
petitioners’ motion for reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in
Angeles City leaving several personal and real properties located
Page 15 of 18
Succession
Opening of Succession | Art. 777
in Angeles City, Dagupan City and Kalookan City.3 He also left a
widow, respondent Esperanza P. Orfinada, whom he married on
July 11, 1960 and with whom he had seven children who are the
herein respondents, namely: Lourdes P. Orfinada, Alfonso
"Clyde" P. Orfinada, Nancy P. Orfinada-Happenden, Alfonso
James P. Orfinada, Christopher P. Orfinada, Alfonso Mike P.
Orfinada (deceased) and Angelo P. Orfinada.4
Apart from the respondents, the demise of the decedent left in
mourning his paramour and their children. They are petitioner
Teodora Riofero, who became a part of his life when he entered
into an extra-marital relationship with her during the subsistence
of his marriage to Esperanza sometime in 1965, and co-
petitioners Veronica5, Alberto and Rowena.6
On November 14, 1995, respondents Alfonso James and
Lourdes Orfinada discovered that on June 29, 1995, petitioner
Teodora Rioferio and her children executed an Extrajudicial
Settlement of Estate of a Deceased Person with Quitclaim
involving the properties of the estate of the decedent located in
Dagupan City and that accordingly, the Registry of Deeds in
Dagupan issued Certificates of Titles Nos. 63983, 63984 and
63985 in favor of petitioners Teodora Rioferio, Veronica
Orfinada-Evangelista, Alberto Orfinada and Rowena Orfinada-
Ungos. Respondents also found out that petitioners were able to
obtain a loan of P700,000.00 from the Rural Bank of Mangaldan
Inc. by executing a Real Estate Mortgage over the properties
subject of the extra-judicial settlement.7
On December 1, 1995, respondent Alfonso "Clyde" P. Orfinada
III filed a Petition for Letters of Administration docketed as S.P.
Case No. 5118 before the Regional Trial Court of Angeles City,
praying that letters of administration encompassing the estate of
Alfonso P. Orfinada, Jr. be issued to him.8
On December 4, 1995, respondents filed a Complaint for the
Annulment/Rescission of Extra Judicial Settlement of Estate of a
Deceased Person with Quitclaim, Real Estate Mortgage and
Cancellation of Transfer Certificate of Titles with Nos. 63983,
63985 and 63984 and Other Related Documents with Damages
against petitioners, the Rural Bank of Mangaldan, Inc. and the
Register of Deeds of Dagupan City before the Regional Trial
Court, Branch 42, Dagupan City.9
On February 5, 1996, petitioners filed their Answer to the
aforesaid complaint interposing the defense that the property
subject of the contested deed of extra-judicial settlement
pertained to the properties originally belonging to the parents of
Teodora Riofero10 and that the titles thereof were delivered to
her as an advance inheritance but the decedent had managed to
register them in his name.11 Petitioners also raised the
affirmative defense that respondents are not the real parties-in-
interest but rather the Estate of Alfonso O. Orfinada, Jr. in view
of the pendency of the administration proceedings.12 On April
29, 1996, petitioners filed a Motion to Set Affirmative Defenses
for Hearing13 on the aforesaid ground.
The lower court denied the motion in its Order14 dated June 27,
1996, on the ground that respondents, as heirs, are the real
parties-in-interest especially in the absence of an administrator
who is yet to be appointed in S.P. Case No. 5118. Petitioners
moved for its reconsideration15 but the motion was likewise
denied.16
This prompted petitioners to file before the Court of Appeals their
Petition for Certiorari under Rule 65 of the Rules of Court
docketed as CA G.R. S.P. No. 42053.17 Petitioners averred that
the RTC committed grave abuse of discretion in issuing the
assailed order which denied the dismissal of the case on the
ground that the proper party to file the complaint for the
annulment of the extrajudicial settlement of the estate of the
deceased is the estate of the decedent and not the
respondents.18

The Court of Appeals rendered the assailed Decision19 dated
January 31, 1997, stating that it discerned no grave abuse of
discretion amounting to lack or excess of jurisdiction by the
public respondent judge when he denied petitioners’ motion to
set affirmative defenses for hearing in view of its discretionary
nature.
A Motion for Reconsideration was filed by petitioners but it was
denied.20 Hence, the petition before this Court.
The issue presented by the petitioners before this Court is
whether the heirs have legal standing to prosecute the rights
belonging to the deceased subsequent to the commencement of
the administration proceedings.21
Petitioners vehemently fault the lower court for denying their
motion to set the case for preliminary hearing on their affirmative
defense that the proper party to bring the action is the estate of
the decedent and not the respondents. It must be stressed that
the holding of a preliminary hearing on an affirmative defense
lies in the discretion of the court. This is clear from the Rules of
Court, thus:
SEC. 5. Pleadings grounds as affirmative defenses.- Any of the
grounds for dismissal provided for in this rule, except improper
venue, may be pleaded as an affirmative defense, and a
preliminary hearing may be had thereon as if a motion to dismiss
had been filed.22 (Emphasis supplied.)
Certainly, the incorporation of the word "may" in the provision is
clearly indicative of the optional character of the preliminary
hearing. The word denotes discretion and cannot be construed
as having a mandatory effect.23 Subsequently, the electivity of
the proceeding was firmed up beyond cavil by the 1997 Rules of
Civil Procedure with the inclusion of the phrase "in the discretion
of the Court", apart from the retention of the word "may" in
Section 6,24 in Rule 16 thereof.
Just as no blame of abuse of discretion can be laid on the lower
court’s doorstep for not hearing petitioners’ affirmative defense, it
cannot likewise be faulted for recognizing the legal standing of
the respondents as heirs to bring the suit.
Pending the filing of administration proceedings, the heirs
without doubt have legal personality to bring suit in behalf of the
estate of the decedent in accordance with the provision of Article
777 of the New Civil Code "that (t)he rights to succession are
transmitted from the moment of the death of the decedent." The
provision in turn is the foundation of the principle that the
property, rights and obligations to the extent and value of the
inheritance of a person are transmitted through his death to
another or others by his will or by operation of law.25
Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an administrator
has not yet been appointed. This is the proper modality despite
the total lack of advertence to the heirs in the rules on party
representation, namely Section 3, Rule 326 and Section 2, Rule
8727 of the Rules of Court. In fact, in the case of Gochan v.
Young,28 this Court recognized the legal standing of the heirs to
represent the rights and properties of the decedent under
administration pending the appointment of an administrator.
Thus:
The above-quoted rules,29 while permitting an executor or
administrator to represent or to bring suits on behalf of the
deceased, do not prohibit the heirs from representing the
deceased. These rules are easily applicable to cases in which an
administrator has already been appointed. But no rule
categorically addresses the situation in which special
proceedings for the settlement of an estate have already been
instituted, yet no administrator has been appointed. In such
instances, the heirs cannot be expected to wait for the
appointment of an administrator; then wait further to see if the
Page 16 of 18
Succession
Opening of Succession | Art. 777
administrator appointed would care enough to file a suit to
protect the rights and the interests of the deceased; and in the
meantime do nothing while the rights and the properties of the
decedent are violated or dissipated.
Even if there is an appointed administrator, jurisprudence
recognizes two exceptions, viz: (1) if the executor or
administrator is unwilling or refuses to bring suit;30 and (2) when
the administrator is alleged to have participated in the act
complained of31 and he is made a party defendant.32 Evidently,
the necessity for the heirs to seek judicial relief to recover
property of the estate is as compelling when there is no
appointed administrator, if not more, as where there is an
appointed administrator but he is either disinclined to bring suit
or is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing
to sue for the recovery of property of the estate during the
pendency of administration proceedings has three exceptions,
the third being when there is no appointed administrator such as
in this case.
As the appellate court did not commit an error of law in upholding
the order of the lower court, recourse to this Court is not
warranted.
WHEREFORE, the petition for review is DENIED. The assailed
decision and resolution of the Court of Appeals are hereby
AFFIRMED. No costs.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Callejo,
Sr., JJ., concur.
FOOTNOTES
Rule 16 of the Rules of Court. It is Section 6, Rule 16 of the 1997
Rules of Civil Procedure which reads:
Section 6. Pleading grounds as affirmative defenses. – If no
motion to dismiss has been filed, any of the grounds for
dismissal provided for in this Rule may be pleaded as an
affirmative defense in the answer and, in the discretion of the
court, a preliminary hearing may be had thereon as if a motion to
dismiss had been filed.
The dismissal of the complaint under this section shall be without
prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer. (Emphasis supplied)
Section 3 of Rule 3 of the Rules of Court:
Sec. 3. Representatives as parties. - Where the action is allowed
to be prosecuted or defended by a representative or someone
acting in a fiduciary capacity, the beneficiary shall be included in
the title of the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party authorized by
law or these Rules. An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be sued without
joining the principal except when the contract involves things
belonging to the principal.
Section 2 of Rule 87:
Sec. 2. Executor or administrator may bring or defend actions
which survive. — For the recovery or protection of the property
or rights of the deceased, an executor or administrator may bring
or defend, in the right of the deceased, actions for causes which
survive."
Danilo I. Suarez vs. CA

SECOND DIVISION
[G.R. No. 94918. September 2, 1992.]
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES,
MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON and
REGINIO I. SUAREZ, Petitioners, v. THE COURT OF
APPEALS, VALENTE RAYMUNDO, VIOLETA RAYMUNDO,
MA. CONCEPCION VITO and VIRGINIA BANTA, Respondents.
Villareal Law Offices, for Petitioners.
Nelson Loyola for Private Respondent.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME;
PROPRIETARY INTEREST OF THE CHILDREN, DIFFERENT
AND ADVERSE FROM THEIR MOTHER. — The legitime of the
surviving spouse is equal to the legitime of each child. The
proprietary interest of petitioners in the levied and auctioned
property is different from and adverse to that of their mother.
Petitioners became co-owners of the property not because of
their mother but through their own right as children of their
deceased father. Therefore, petitioners are not barred in any way
from instituting the action to annul the auction sale to protect
their own interest.
DECISION
NOCON, J.:
The ultimate issue before Us is whether or not private
respondents can validly acquire all the five (5) parcels of land co-
owned by petitioners and registered in the name of petitioner’s
deceased father. Marcelo Suarez, whose estate has not been
partitioned or liquidated, after the said properties were levied and
publicly sold en masse to private respondents to satisfy the
personal judgment debt of Teofista Suarez, the surviving spouse
of Marcelo Suarez, mother of herein petitioners.chanrobles law
library
The undisputed facts of the case are as follows:chanrob1es
virtual 1aw library
Herein petitioners are brothers and sisters. Their father died in
1955 and since then his estate consisting of several valuable
parcels of land in Pasig, Metro Manila has lot been liquidated or
partitioned. In 1977, petitioners’ widowed mother and Rizal
Realty Corporation lost in the consolidated cases for rescission
of contract and for damages, and were ordered by Branch 1 of
the then Court of First Instance of Rizal (now Branch 151, RTC
of Pasig) to pay, jointly and severally, herein respondents the
aggregate principal amount of about P70,000 as damages. 1
The judgment against petitioner’s mother and Rizal Realty
Corporation having become final and executory, five (5) valuable
parcel of land in Pasig, Metro Manila, (worth to be millions then)
were levied and sold on execution on June 24, 1983 in favor of
the private respondents as the highest bidder for the amount of
P94,170.000. Private respondents were then issued a certificate
of sale which was subsequently registered or August 1, 1983.
On June 21, 1984 before the expiration of the redemption period,
petitioners filed a reinvindicatory action 2 against private
respondents and the Provincial Sheriff of Rizal, thereafter
docketed as Civil Case No. 51203, for the annulment of the
auction sale and the recovery of the ownership of the levied
pieces of property. Therein, they alleged, among others, that
Page 17 of 18
Succession
Opening of Succession | Art. 777
being strangers to the case decided against their mother, they
cannot be held liable therefor and that the five (5) parcels of
land, of which they are co-owners, can neither be levied nor sold
on execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued to private
respondents a final deed of sale 3 over the properties.
On October 22, 1984, Teofista Suarez joined by herein
petitioners filed with Branch 151 a Motion for Reconsideration 4
of the Order dated October 10, 1984, claiming that the parcels of
land are co-owned by them and further informing the Court the
filing and pendency of an action to annul the auction sale (Civil
Case No. 51203), which motion however, was
denied.chanrobles.com:cralaw:red
On February 25, 1985, a writ of preliminary injunction was issued
enjoining private respondents from transferring to third parties
the levied parcels of land based on the finding that the auctioned
lands are co-owned by petitioners.
On March 1, 1985, private respondent Valente Raymundo filed in
Civil Case No. 51203 a Motion to Dismiss for failure on the part
of the petitioners to prosecute, however, such motion was later
denied by Branch 155, Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No. 51203 an
Ex-Parte Motion to Dismiss complaint for failure to prosecute.
This was granted by Branch 155 through an Order dated May
29, 1986, notwithstanding petitioner’s pending motion for the
issuance of alias summons to be served upon the other
defendants in the said case. A motion for reconsideration was
filed but was later denied.
On October 10, 1984, RTC Branch 151 issued in Civil Case Nos.
21736-21739 an Order directing Teofista Suarez and all persons
claiming right under her to vacate the lots subject of the judicial
sale; to desist from removing or alienating improvements
thereon; and to surrender to private respondents the owner’s
duplicate copy of the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals a
petition for certiorari to annul the Orders of Branch 151 dated
October 10, 1984 and October 14, 1986 issued in Civil Case
Nos. 21736-21739.
On December 4, 1986 petitioners filed with Branch 155 a Motion
for reconsideration of the Order 5 dated September 24, 1986. In
an Order dated June 10, 1987, 6 Branch 155 lifted its previous
order of dismissal and directed the issuance of alias
summons.chanrobles law library : red
Respondents then appealed to the Court of Appeals seeking to
annul the orders dated February 25, 1985, 7 May 19, 1989 8 and
February 26, 1990 9 issued in Civil Case No. 51203 and further
ordering respondent Judge to dismiss Civil Case No. 51203. The
appellate court rendered its decision on July 27, 1990, 10 the
dispositive portion of which reads:jgc:chanrobles.com.ph
"WHEREFORE, the petition for certiorari is hereby granted and
the questioned orders dated February 25, 1985, May 19, 1989
and February 26, 1990 issued in Civil Case No. 51203 are
hereby annulled, further respondent Judge is ordered to dismiss
Civil Case No. 51203." 11
Hence, this appeal.
Even without touching on the incidents and issues raised by both
petitioner and private respondents and the developments
subsequent to the filing of the complaint, We cannot but notice
the glaring error committed by the trial court.
It would be useless to discuss the procedural issue on the
validity of the execution and the manner of publicly selling en
 Succession
Opening of Succession | Art. 777

masse the subject properties for auction. To start with, only one-
half of the 5 parcels of land should have been the subject of the
auction sale.

The law in point is Article 777 of the Civil Code, the law
applicable at the time of the institution of the case.

"The rights to the succession are transmitted from the moment of

the death of the decedent."cralaw virtua1aw library

Article 888 further provides:chanrobles.com.ph : virtual law

library

"The legitime of the legitimate children and descendants consists

of one-half of the hereditary estate of the father and of the
mother.

The latter may freely dispose of the remaining half, subject to the
rights of illegitimate children and of the surviving spouse as
hereinafter provided."cralaw virtua1aw library

Article 892 par. 2 likewise provides:jgc:chanrobles.com.ph

"If there are two or more legitimate children or descendants, the

surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or descendants."cralaw
virtua1aw library

Thus, from the foregoing, the legitime of the surviving spouse is

equal to the legitime of each child.

The proprietary interest of petitioners in the levied and auctioned

property is different from and adverse to that of their mother.
Petitioners became co-owners of the property not because of
their mother but through their own right as children of their
deceased father. Therefore, petitioners are not barred in any way
from instituting the action to annul the auction sale to protect
their own interest.

WHEREFORE, the decision of the Court of Appeals dated July

27, 1990 as well as its Resolution of August 28, 1990 are hereby
REVERSED and set aside; and Civil Case No. 51203 is
reinstated only to determine that portion which belongs to
petitioners and to annul the sale with regard to said
portion.chanrobles law library

SO ORDERED.

Narvasa, C.J., Padilla and Regalado, JJ., concur.

Melo, J., took no part.

Page 18 of 18