Ignacia Diaz vs. Ana De LeonG.R. No. 17714, May 31, 1992

Facts:

Jesus De Leon, the testator, executed 2 wills, shortly after the execution of the first will, he asked it to be returned to him and ordered his servant to tear the document. The first will was destroyed in the presence of a nurse. After some time, Dr. Cornelio Mapa asked the testator about the will, the testator said that it had been destroyed.

The petitioner argued that there was no revocation of the first will, while the contestant argued that the testator revoked his will by destroying it, and by executing another will expressly revoking the first will.

Issue:

Is the revocation of the first will made by the testator valid?

Held:

Yes. The Supreme Court ruled that the revocation made by the testator was valid. Although the second will was found to not have satisfied the requisites in order to constitute a revocation, the destruction of a will animo revocandi constitutes, in itself, a sufficient revocation (Sec.623, Code of Civil Procedure). The testators intention of revoking the will is also manifest from the fact that the testator was anxious to withdraw or change the provisions he had made in his first will.

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLOvs.LUZ, GLICERIA and CORNELIO MOLOG.R. No. L-2538, Sept. 21 1951

Facts:

Mariano Molo y Legazpi, the testator, executed 2 wills, the first one on August 17, 1918 and the second one on June 20, 1939. The testator died on January 24, 1941 without leaving any forced heir either in the descending or ascending line. However, he was survived, by his wife, the petitioner, Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator.

Juana Juan Vda. de Molo, the widow, filed a petition for the probate of the second will. The second will that was executed in 1939 was admitted to probate but was subsequently set aside on ground that the petitioner failed to prove its due execution and due to the petition of the oppositors.

Due to the disallowance of the the June 20, 1939 will, the widow filed a petition for the probate of the August 17, 1918 will.

Issue:

Can the August 17, 1918 will still be valid despite its revocation in the disallowed June 20, 1939 will?

Held:

Yes. It was held by the Supreme Court that the August 17, 1918 can still be valid because the June 20, 1939 was disallowed for the reason that it was not executed in accordance with law and thus cannot revoke the previous will. The revocatory clause was held as void and therefore there was no valid revocation.

The August 17, 1918 will can still be probated under the principle of dependent relative revocation. The doctrine applies when a testator cancels or destroys a will or executes an instrument intended to revoke a will with the intention to make a new testamentary disposition as substitute for the old, and the new disposition fails of effect for some reason.

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLOvs.COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTOG.R. No. 76464, February 29, 1988

Facts:

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's estate.

On February 1, 1964, the parties (Aldina, Constancio, Panfilo, and Felino) executed an agreement of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal parts among the parties.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas.

Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

Due to this, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will filed a petition in court for reconsideration and annulment of the proceedings therein and for the allowance of the will. The will was allegedly burned by the househelp under the instruction of the testatrix.

The lower court denied the probate on the ground that theanimus revocandiin the burning of the will was sufficiently proven.

Issue:

Is there a valid revocation of the will?

Held:

No. The Supreme Court held that there was no valid revocation of the will because the intent to revoke the will and whether the paper burned was really the will was not established.

Revocation through animus revocandi requires that the testatrix herself or another under his express direction and presence, which in this case was not established, therefore not satisfying the requirement and making no revocation.

Estate of Miguel Mamuyac, deceased.FRANCISCO GAGOvs.CORNELIO MAMUYAC, AMBROSIO LARIOSA,FELICIANA BAUZON, and CATALINA MAMUYACG.R. No. L-26317, January 29, 1927

Facts:

Miguel Mamuyac, the testator, executed 3 wills, one on July 27, 1918, one on April 16, 1919, and another on 1920.

Francisco Gago filed a petition for the probate of a will of Miguel Mamuyac executed on July 27, 1918. The oppositors alleged that the will was already revoked and that the testator executed another will on April 16, 1919. The petition for probate was denied because of the said second will.

Francisco Gago then filed a petition for the probate of the second will of Miguel Mamuyac. The oppositors alleged that the second will presented by Francisco Gago was merely a carbon copy, that the same has been revoked, and that the said will was not the will of the testator. The probation of said will of April 16, 1919 was denied upon the ground that the same had been cancelled and revoked in the year 1920.

Issue:

Is there a valid revocation of the will?

Held:

Yes. The Supreme Court affirmed the decision of the lower court that the April 16, 1919 will was already cancelled in 1920. In view of the fact that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, the Supreme Court sided with the lower court. It was presumed that the missing will that was last seen in the possession of a testator, in the absence of other competent evidence, was cancelled or destroyed.

EUGENIA RAMONAL CODOY, and MANUEL RAMONALvs.EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGASG.R. No. 123486, August 12, 1999

Facts:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed a petition for probate of the holographic will of the deceased, who died on January 16, 1990. In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and the will was written voluntarily.The assessed value of the decedents property, including all real and personal property was aboutP400,000.00, at the time of her death.On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an oppositionto the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible.Petitioners argued that the will was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.Respondents presented six (6) witnesses and various documentary evidence.Petitioners instead of presenting their evidence, filed a demurrerto evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal.The Lower court granted the demurrer. The respondents the filed a notice of appeal and in support reiterated the testimony of the 6 witnesses. The Court of Appeals reversed the Lower Courts decision.

Issue:

Is Article 811 of the New Civil Code of the Philippines mandatory?

Held:

Yes. The Supreme Court set aside the decision of the Court of Appeals and ruled that Article 811 of the New Civil Code of the Philippines which states that in the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. is mandatory

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELASvs.AMPARO ARANZA, ET AL.G.R. No. L-58509, December 7, 1982

Facts:

Ricardo B. Bonilla, the testator, executed a holographic will on January 25, 1962. He died on May 13, 1976. On January 11, 1977, appellant filed a petition for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition was opposed by the appellees on the ground that the deceased did not leave any will.

The Lower Court dismissed the petition for probate since the original will was lost and they held that a photocopy cannot stand in lieu of the original in a probate.

Issue:

Can a holographic will be proved by means of a photocopy?

Held:

Yes. The Supreme Court held that a holographic will can be proven by a photocopy because then the authenticity of the handwriting of the deceased can be determined by the probate court. The will may still be probated given that all the requisites required by law are satisfied.

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GANvs.ILDEFONSO YAPG.R. No. L-12190, August 30, 1958

Facts:On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.On March 17, 1952, Fausto E. Gan initiated proceedings in court with a petition for the probate of a holographic will allegedly executed by the deceased.Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. The will itself was not presented, Gan tried to establish its contents.After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge refused to probate the alleged will that resulted to this appeal.Issue:May a holographic will be probated upon the testimony of witnesses who have seen the will and declare that it was the handwriting of the testator?

Held:

No. The Supreme Court upheld the earlier ruling that a holographic will may not be probated by mere testimony of witnesses who have seen or read such will.

The Rules of Court allow proof (and probate) of a lost or destroyed will by secondaryevidence, the testimony of witnesses in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here.

The difference between holographic wills and ordinary will lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself, in the second, the testimony of the subscribing or instrumental witnesses (and of the notary). The loss of the holographic will entails the loss of the only medium of proof, if the ordinary will is lost, the subscribing witnesses are available to be authenticated.

ROSA K. KALAWvs.HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAWG.R. No. L-40207, September 28, 1984

Facts:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition for the probate of her holographic Will executed on December 24, 1968.

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix

Rosa Calaws position was that the holographic will, as first written, should be given effect and probated so that she could be the sole heir thereunder.

The Lower Court denied the petition for probate.

Issue:

Is the will valid despite the alterations and/or insertions that were not signed/authenticated by the testatrix?

Held:

No. The Supreme Court held that the will was already revoked/void because the holographic will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid.

This was held even as the National Bureau of Investigations confirmed that the handwriting in the original text is the same as in the alterations and/or insertions, it was the failure to authenticate/sign the alterations and/or insertions that was the reason of the court.

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDAvs.HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo CaballeroG.R. No. 103554, May 28, 1993

Facts:

on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will.It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator.

On April 4, 1979, Mateo Caballero himself filed a petition seeking for the probate of his last will and testament.

On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court.

Upon probate, the will was opposed on the ground that the attestation clause is fatally defective for the failure to state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and ofone another.

Issue:

Does the will contain a valid attestation clause?

Held:

No. The Supreme Court held that the absence of the questioned statement is a fatal defect or imperfection which must necessarily result in the disallowance of the will. The Supreme Court said that it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the presence of the testator and of each other since the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The Supreme Court directed to forthwith dismiss its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to Revive Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent.

In re will of Ana Abangan.GERTRUDIS ABANGANvs.ANASTACIA ABANGAN, ET AL.G.R. No. L-13431, November 12, 1919

Facts:

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the probate of the will should have been denied.

Issue:

Was the will validly probated considering the solemnities and the dialect that was used on the will?

Held:

Yes. The Supreme Court held that the will was validly probated because the will was executed in Cebu City and in the dialect of the place where the testatrix is a resident; it is enough to presume that she knew the dialect in the absence of any proof to the contrary. It was also held that in a one page will, the witnesses and the testatrix need not sign in the upper left margin of the will if they already signed in the bottom part. It was held that in a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged.

Testacy of Sixto Lopez. JOSE S. LOPEZvs.AGUSTIN LIBOROG.R. No. L-1787, August 27, 1948

Facts:

In 1947, Don Sixto Lopez, the testator who died on the age of 83 at Balayan, Batangas, executed a willwhere Jose Lopez was named an heir. Agustin Liboro questioned the validity of the will based onthe following grounds: That the first sheet, which is alsothe first page is not paged either inletters or in Arabic numerals, that the witnesses to the willprovided contradictory statements, that Don Sixto used his thumbmark to sign the will, and that there was no indication in thewill that the language used therein is known by Don Sixto Lopez.

Issue:

Is the will valid?

Held:

Yes. The Supreme Court held that the will of Don Sixto Lopez was valid and affirmed the decision of the lower court in ordering the probate of the will.The Supreme Court ruled on the grounds that were presented by Agustin Liboro, the oppositor.

First, the unnumbered page is clearly identified as the first page by the internal sense ofits contents considered in relation to the contents of the second page. By theirmeaning and coherence, the first and second lines on the second page are undeniably acontinuation of the last sentence of the testament, before the attestation clause, which starts at thebottom of the preceding page.

Second, the contradictions in the testimony of the instrumental witnesses as are set out inLiboros appelantsbrief are incidents not allof which everyone of the witnesses can be supposed to have perceived, or torecall in the same order in which they occurred.

Third, Don Sixto affixed his thumb mark tothe instrument instead of signing his name. The reason for this was that hewas suffering from partial paralysis. There is nothing curious or suspicious in the fact that thetestator chose the use of mark as the means of authenticating his will. Itwas a matter of taste orpreference. Both ways are good.

Lastly, there is no statutory requirement which prescribes that it mustbe expressly placed in the will that thetestator knows the language being used therein. It just required that the testator/testatrix knows the language the will is being written in.

Suroza v. Honrado110 SCRA 388

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their father) who represents the minorsvs.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 AbraG.R. No. L-41715, June 18, 1976

Facts:

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 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.

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.

Issue:

May the action in court prosper in lieu of the death of a party during the pendency of a case?

Held:

Yes. The Supreme Court held that the action may still prosper despite the death of one of the parties. While it may be true that a dead person cannot sue, he can be substituted by his heirs in pursuing the case up to its completion. Article 777 ofthe New Civil Code of the Philippines provides "that the rights to the succession are transmitted from the moment of the death of the decedent." When Fortunata Barcena, therefore, died her claim or right to the parcels of land inlitigation in Civil Case No. 856, was not extinguished by herdeath but was transmitted to her heirs upon her death.

ESTATE OF K. H. HEMADY vs. LUZON SURETY CO., INC.GRL-8437, Nov.28,1956

Facts:

This was an Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal. The Luzon Surety Co. had filed a claim against the Estate based on twenty different indemnity agreements, or counter bonds, each subscribed by a distinct principal and by the deceased K. H. Hemady, a surety solidary guarantor in all of them, in consideration of the Luzon Surety Co.s of having guaranteed, the various principals in favor of different creditors.

Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the 20 bonds it executed inconsideration of the counterbonds, and asked for judgment for the unpaid premiums and documentarystamps affixedto thebonds, with12 % interest thereon.CFI dismissed the claims ofLuzon SuretyCo.,on failure to state the causeof action.

Issue:

What obligations are transmissibleupon the deathof the decedent?Are contingentclaims chargeable against the estate?

Held:

Under the present Civil Code (Art. 1311), Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation orby provision of law.While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the rights of the deceased but also to his obligations. Articles 774 & 776, NCC, provides, thereby confirming Art. 1311.ART. 774. Succession is a mode of acquisition by virtue of which theproperty, rights and obligations to the extent of thevalue of the inheritance, of aperson are transmitted through his death toanotherorotherseitherbyhiswillorbyoperationoflaw.ART.776. The inheritance includes all the property, rights and obligationsof a person which are not extinguished by his death.The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is made from the estate is ultimately a payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirswould have been entitled to receive. The general rule is that a partys contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive depersonalization of patrimonial rights and duties.Of the 3 exceptions fixed by Art 1311, the nature of obligation of the surety or guarantor does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal inducement for the contract. Creditor Luzon Surety Co. expects from Hemady when it accepted the latter as surety in the counter bonds was the reimbursement of the moneys that the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This reimbursement is a payment of a sum of money, resulting from anobligation to give;and to the Luzon Surety Co.,it was indifferentthat the reimbursement should be made by Hemady himself or by some one else in his behalf, so long as the money was paid to it. The 2nd exception of Art. 1311, is intransmissibility by stipulation of the parties. Being exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but must be expressly established, or at the very least, clearly inferable from the provisions of the contract itself, and the text of the agreements sued upon nowhere indicate that they are non-transferable. The 3rd exception to the transmissibility of obligations under Art.1311 exists when they are not transmissible by operation of law. The provision makes reference to those cases where the law expresses that the rights or obligations are extinguished by death: legal support, parental authority, usufruct, contracts for a piece of work, partnership & agency. By contract, the articles of the Civil Code that regulate guaranty or suretyship (Art 2047 to 2084) contain no provision that the guaranty is extinguished upon the death of theguarantor or the surety. The contracts of suretyship entered into by Hemady in favor of Luzon Surety Co. not being rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death to his heirs. The contracts give rise to contingent claims provable against his estate under sec. 5, Rule 87.The most common example of the contigent claim is that which arises when a person is bound as surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of suretyship the surety has no claim whatever against his principal until he himself pays something by way of satisfaction upon the obligation which is secured. When he does this, there instantly arises infavor of the surety the right to compel the principal to exonerate the surety. But until the surety has contributed something to the payment of the debt, or has performed the secured obligation in whole or in part, he has no right of action against anybody - no claim that could be reduced to judgment. Our conclusion is that the solidary guarantors liability is not extinguished by his death, and that in such event, the Luzon Surety Co., had the right tofile against the estate a contingent claim for reimbursement. Wherefore, the order appealed from is reversed, and the records are ordered remanded to the court of origin.

FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY PROVINCEvs.COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUAG.R. Nos. L-46430-31 July 30, 1979

Facts:

On November 25, 1949, Don Jesus Alsua and his wife, Do;a Florentina Rella, both of Ligao, Albay, together with all their living children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized agreement,Escritura de Particion Extrajudicial(Exhibit 8), over the then present and existing properties of the spouses Don Jesus and Do;a Florentina enumerated in a prepared inventory.