Intestate Estate of the Late Vito Borromeo,

Patrocinio Borromeo-Herrera, petitioner, vs.

Fortunato Borromeo and Hon. Francisco
Burgos, Judge of the Court of First Instance of
Cebu, Branch II, respondents.
GR No. L-41171, July 23, 1987
Germaine Suzette Austero
Case No. 47 - CivRev (Succession)

DOCTRINE:

Waiver of hereditary rights, requisites - (1) the existence of a right; (2) the knowledge of
the existence thereof; and (3) the intention to relinquish such right. The intention to waive a
right must be shown clearly and convincingly. His act should be so manifestly consistent
with, and indicative of an intent to, voluntary relinquish the particular right that no other
explanation of his conduct is possible.

FACTS:

Vito Borromeo died without forced heirs but leaving extensive properties in the province of
Cebu. On April 19, 1952, Jose Junquera filed a petition for the probate of a one page
document as the last will and testament left by the deceased. The document, drafted in
Spanish, was allegedly signed and thumb marked by the deceased.

The probate court held that the document presented as the will was a forgery. On appeal,
the decision of the probate court was affirmed. The testate proceedings was converted into
an intestate proceedings wherein several parties came before the court filing claims or
petitions alleging themselves as heirs.

Based on the joint claims, it was found that Vito Borromeo died as a widower without any
issue, and all his brothers and sisters predeceased him. That some of his brothers and
sisters died leaving issues except for the last three who died without any issue.

1
On April 10, 1969, the trial court issued an order declaring the intestate heirs of Vito
Borromeo. The court also ordered that the assets of the intestate estate of Vito shall be
divided into 4/9 and 5/9 groups and distributed in equal and equitable shares among the 9
declared intestate heirs.

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, 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.

The Court dismissed the motion finding that Fortunato was already barred by the order
declaring the persons named as legal heirs.

Fortunato filed an MR and changed his basis for his claim. He asserted and incorporated a
Waiver of Hereditary Rights signed by five of the nine heirs, relinquishing their shares in the
disputed estate. The motion was opposed on the ground that the trial court had no
jurisdiction to take cognizance of the claim and that the waiver agreement is void as it was
executed before the declaration of heirs.

The trial court concluded that the five waived their right in favor of Fortunato and declared
the latter as entitled to 5/9 of the estate of Vito. A motion for reconsideration was denied.

Hence, the present petition which seeks to annul and set aside the trial court’s order.

ISSUE:

1. WON the waiver was valid so as to confer to Fortunato the 5/9 share of Vito’s estate.
(NO)
2. WON the trial court had jurisdiction to pass upon the validity of the waiver
agreement (YES)

RULING:

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)
knowledge of the existence thereof; and (3) an intention to relinquish such right.
The intention to waive a right must be shown clearly and convincingly. 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 due to the
compromise, and agreement to partition that were executed by the five heirs.

As to the issue of the trial court’s jurisdiction , it had the jurisdiction to pass upon
the validity of the waiver agreement. The Court sees no impediment to the trial
court in exercising jurisdiction and trying the said claims or petitioner. 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.

2
Hence, the questioned order of the trial court was SET ASIDE.