Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-4275             March 23, 1909

PAULA CONDE, plaintiff-appellee, vs.

ROMAN ABAYA, defendant-appellant.

ARELLANO, C.J.:

From the hearing of the appeal interposed by Roman Abaya in the special proceedings brought in the Court of First Instance of La Laguna for the settlement of the intestate estate and the distribution of the property of Casiano Abaya it appears:

I. As antecedents: that Casiano Abaya, unmarried, the son of Romualdo Abaya and Sabrina Labadia, died on the 6th of April, 1899; that Paula Conde, as the mother of the natural children Jose and Teopista Conde, whom the states she had by Casiano Abaya, on the 6th of November, 1905, moved the settlement of the said intestate succession; that an administrator having been appointed for the said estate on the 25th of November, 1905, Roman Abaya, a son of the said Romualdo Abaya and Sabrina Labadia, the parents of the late Casiano Abaya, came forward and opposed said appointment and claimed it for himself as being the nearest relative of the deceased; that this was granted by the court below on the 9th of January, 1906; that on the 17th of November, 1906, Roman Abaya moved that, after due process of law, the court declare him to be the sole heir of Casiano Abaya, to the exclusion of all other persons, especially of Paula Conde, and to be therefore entitled to take possession of all the property of said estate, and that it be adjudicated to him; and that on November 22, 1906, the court ordered the publication of notices for the declaration of heirs and distribution of the property of the estate.

II. That on the 28th of November, 1906, Paula Conde, in replying to the foregoing motion of Roman Abaya, filed a petition wherein she stated that she acknowledged the relationship alleged by Roman Abaya, but that she considered that her right was superior to his and moved for a hearing of the matter, and, in consequence of the evidence that she intended to present she prayed that she be declared to have preferential rights to the property left by Casiano Abaya, and that the same be adjudicated to her together with the corresponding products thereof.

III. That the trial was held, both parties presenting documentary and oral evidence, and the court below entered the following judgment:

That the administrator of the estate of Casiano Abaya should recognize Teopista and Jose Conde as being natural children of Casiano Abaya; that the petitioner Paula Conde should succeed to the hereditary rights of her children with respect to the inheritance of their deceased natural father Casiano Abaya; and therefore, it is hereby declared that she is the only heir to the property of the said intestate estate, to the exclusion of the administrator, Roman Abaya.

IV. That Roman Abaya excepted to the foregoing judgment, appealed to this court, and presented the following statement of errors:

1. The fact that the court below found that an ordinary action for the acknowledgment of natural children under articles 135 and 137 of the Civil Code, might be brought in special probate proceedings.

2. The finding that after the death of a person claimed to be an unacknowledged natural child, the mother of such presumed natural child, as heir to the latter, may bring an action to enforce the acknowledgment of her deceased child in accordance with articles 135 and 137 of the Civil Code.

3. The finding in the judgment that the alleged continuos possession of the deceased children of Paula Conde of the status of natural children of the late Casiano Abaya, has been fully proven in these proceedings; and

4. On the hypothesis that it was proper to adjudicate the property of this intestate estate to Paula Conde, as improperly found by the court below, the court erred in not having declared that said property should be reserved in favor of relatives of Casiano Abaya to the third degree, and in not having previously demanded securities from Paula Conde to guarantee the transmission of the property to those who might fall within the reservation.

As to the first error assigned, the question is set up as to whether in special proceedings for the administration and distribution of an intestate estate, an action might be brought to enforce the acknowledgment of the natural child of the person from whom the inheritance is derived, that is to say, whether one might appear as heir on the ground that he is a recognized natural child of the deceased, not having been so recognized by the deceased either voluntarily or compulsorily by reason of a preexisting judicial decision, but asking at the same time that, in the special proceeding itself, he be recognized by the presumed legitimate heirs of the deceased who claim to be entitled to the succession opened in the special proceeding.

According to section 782 of the Code of Civil Procedure —

If there shall be a controversy before the Court of First Instance as to who the lawful heirs of the deceased person are, or as to the distributive share to which each person is entitled under the law, the testimony as to such controversy shall be taken in writing by the judge, under oath, and signed by the witness. Any party in interest whose distributive share is affected by the determination of such controversy, may appeal from the judgment of the Court of First Instance determining such controversy to the Supreme Court, within the time and in the manner provided in the last preceding section.

This court has decided the present question in the manner shown in the case of Juana Pimentel vs. Engracio Palanca (5 Phil. Rep., 436.)

The main question with regard to the second error assigned, is whether or not the mother of a natural child now deceased, but who survived the person who, it is claimed, was his natural father, also deceased, may bring an action for the acknowledgment of the natural filiation in favor of such child in order to appear in his behalf to receive the inheritance from the person who is supposed to be his natural father.

In order to decide in the affirmative the court below has assigned the following as the only foundation:

In resolving a similar question Manresa says: "An acknowledgment can only be demanded by the natural child and his descendants whom it shall benefit, and should they be minors or otherwise incapacitated, such person as legally represents them; the mother may ask it in behalf of her child so long as he is under her authority." On this point no positive declaration has been made, undoubtedly because it was not considered necessary. A private action is in question and the general rule must be followed. Elsewhere the same author adds: "It may so happen that the child dies before four years have expired after attaining majority, or that the document supporting his petition for acknowledgment is discovered after his death, such death perhaps occurring after his parents had died, as is supposed by article 137, or during their lifetime. In any case such

right of action shall pertain to the descendants of the child whom the acknowledgment may interest." (See Commentaries to arts. 135 and 137, Civil Code, Vol. I.)

The above doctrine, advanced by one of the most eminent commentators of the Civil Code, lacks legal and doctrinal foundation. The power to transmit the right of such action by the natural child to his descendants can not be sustained under the law, and still less to his mother.

It is without any support in law because the rule laid down in the code is most positive, limiting in form, when establishing the exception for the exercise of such right of action after the death of the presumed parents, as is shown hereafter. It is not supported by any doctrine, because up to the present time no argument has been presented, upon which even an approximate conclusion could be based.

Although the Civil Code considerably improved the condition of recognized natural children, granting them rights and actions that they did not possess under the former laws, they were not, however, placed upon the same place as legitimate ones. The difference that separates these two classes of children is still great, as proven by so many articles dealing with the rights of the family and the succession in relation to the members thereof. It may be laid down as legal maxim, that whatever the code does not grant to the legitimate children, or in connection with their rights, must still less be understood as granted to recognized natural children or in connection with their rights. There is not a single exception in its provisions.

If legitimacy is the attribute that constitutes the basis of the absolute family rights of the child, the acknowledgment of the natural child is, among illegitimate ones, that which unites him to the family of the father or the mother who recognized him, and affords him a participation in the rights of the family, relatively advantageous according to whether they are alone or whether they concur with other individuals of the family of his purely natural father or mother.

Thus, in order to consider the spirit of the Civil Code, nothing is more logical than to establish a comparison between an action to claim the legitimacy, and one to enforce acknowledgment.

ART. 118. The action to claim its legitimacy may be brought by the child at any time of its lifetime and shall be transmitted to its heirs, should it die during minority or in a state of insanity. In such cases the heirs shall be allowed a period of five years in which to institute the action.

The action already instituted by the child is transmitted by its death to the heirs, if it has not lapsed before then.

ART. 137. The actions for the acknowledgment of natural children can be instituted only during the life of the presumed parents, except in the following cases:

1. If the father or mother died during the maturity of the child, in which case the latter may institute the action before the expiration of the first four years of its maturity.

2. If, after the death of the father or mother, some instrument, before unknown, should be discovered in which the child is expressly acknowledged.

In this case the action must be instituted with the six months following the discovery of such instrument.

On this supposition the first difference that results between one action and the other consists in that the right of action for legitimacy lasts during the whole lifetime of the child, that is, it can always be brought against the presumed parents or their heirs by the child itself, while the right of action for the acknowledgment of a natural child does not last his whole lifetime, and, as a general rule, it can not be instituted against the heirs of the presumed parents, inasmuch as it can be exercised only during the life of the presumed parents.

With regard to the question at issue, that is, the transmission to the heirs of the presumed parents of the obligation to admit the legitimate filiation, or to recognize the natural filiation, there exists the most radical difference in that the former continues during the life of the child who claims to be legitimate, and he may demand it either directly and primarily from the said presumed parents, or indirectly and secondarily from the heirs of the latter; while the second does not endure for life; as a general rule, it only lasts during the life of the presumed parents. Hence the other difference, derived as a consequence, that an action for legitimacy is always brought against the heirs of the presumed parents in case of the death of the latter, while the action for acknowledgment is not brought against the heirs of such parents, with the exception of the two cases prescribed by article 137 transcribed above.

So much for the passive transmission of the obligation to admit the legitimate filiation, or to acknowledge the natural filiation.

As to the transmission to the heirs of the child of the latter's action to claim his legitimacy, or to obtain the acknowledgment of his natural filiation, it is seen that the code grants it in the first case, but not in the second. It contains provisions for the transmission of the right of action which, for the purpose claiming his legitimacy inheres in the child, but it does not say a word with regard to the transmission of the right to obtain the acknowledgment of the natural filiation.

Therefore, the respective corollary of each of the two above-cited articles is: (1) That the right of action which devolves upon the child to claim his legitimacy under article 118, may be transmitted to his heirs in certain cases designated in the said article; (2) That the right of action for the acknowledgment of natural children to which article 137 refers, can never be transmitted, for the reason that the code makes no mention of it in any case, not even as an exception.

It is most illogical and contrary to every rule of correct interpretation, that the right of action to secure acknowledgment by the natural child should be presumed to be transmitted, independently, as a rule, to his heirs, while the right of action to claim legitimacy from his predecessor is not expressly, independently, or, as a general rule, conceded to the heirs of the legitimate child, but only relatively and as an exception. Consequently, the pretension that the right of action on the part of the child to obtain the acknowledgment of his natural filiation is transmitted to his descendants is altogether unfounded. No legal provision exists to sustain such pretension, nor can an argument of presumption be based on the lesser claim when there is no basis for the greater one, and when it is only given as an exception in well-defined cases. It is placing the heirs of the natural child on a better footing than the heirs of the legitimate one, when, as a matter of fact, the position of a natural child is no better than, no even equal to, that of a legitimate child.

From the express and precise precepts of the code the following conclusions are derived:

The right of action that devolves upon the child to claim his legitimacy lasts during his whole life, while the right to claim the acknowledgment of a natural child lasts only during the life of his presumed parents.

Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during his whole life, he may exercise it either against the presumed parents, or their heirs; while the right of action to secure the acknowledgment of a natural child, since it does not last during his whole life, but depends on that of the presumed parents, as a general rule can only be exercised against the latter.

Usually the right of action for legitimacy devolving upon the child is of a personal character and pertains exclusively to him, only the child may exercise it at any time during his lifetime. As an exception, and in three cases only, it may be transmitted to the heirs of the child, to wit, if he died during his minority, or while insane, or after action had been already instituted.

An action for the acknowledgment of a natural child may, as an exception, be exercised against the heirs of the presumed parents in two cases: first, in the event of the death of the latter during the minority of the child, and second, upon the discovery of some instrument of express acknowledgment of the child, executed by the father or mother, the existence of which was unknown during the life of the latter.

But such action for the acknowledgment of a natural child can only be exercised by him. It can not be transmitted to his descendants, or his ascendants.

In support of the foregoing the following authorities may be cited:

Sanchez Roman, in his Treatise of Civil Law, propounds the question as to whether said action should be considered transmissive to the heirs or descendants of the natural child, whether he had or had not exercised it up to the time of his death, and decides it as follows:

There is an entire absence of legal provisions, and at most, it might be deemed admissible as a solution, that the right of action to claim the acknowledgment of a natural child is transmitted by the analogy to his heirs on the same conditions and terms that it is transmitted to the descendants of a legitimate child, to claim his legitimacy, under article 118, but nothing more; because on this point nothing warrants placing the heirs of a natural child on a better footing than those of the legitimate child, and even to compare themwould not fail to be a strained and questionable matter, and one of great difficulty for decision by the courts, for the simple reason that for the heirs of the legitimate child, the said article 118 exists, while for those of the natural child, as we have said, there is no provision in the code authorizing the same, although on the other hand there is none that prohibits it. (Vol. V.)

Diaz Guijarro and Martinez Ruiz in their work on "The Civil Code as construed by the supreme court of Spain," commenting upon article 137, say:

Article 118, taking into account the privileges due to the legitimacy of children, grants them the right to claim said legitimacy during their lifetime, and even authorizes the transmission of said right for the space of five years to the heirs thereof, if the child die during his minority or in a state of insanity. But as article 137 is based on the consideration that in the case of a natural child, ties are less strong and sacred in the eyes of the law, it does not fix such a long and indefinite period for the exercise of the action; it limits it to the life of the parents, excepting in the two cases mentioned in said article; and it does not allow, as does article 118, the action to pass on to the heirs, inasmuch as, although it does not prohibit it, and for that reason it might be deemed on general principles of law to consent to it, such a supposition is inadmissible for the reason that a comparison of both articles shows that the silence of the law in the latter case is not, nor it can be, an omission, but a deliberate intent to establish a wide difference between the advantages granted to a legitimate child and to a natural one.

(Ibid., Vol. II, 171.)

Navarro Amandi (Cuestionario del Código Civil) raises the question: "Can the heirs of a natural child claim the acknowledgment in those cases wherein the father or mother are under obligation to acknowledge"? And says:

Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that the right of investigation forms a part of the estate of the child, and along with his patrimony is transmitted to his heirs. The affirmation is altogether too categorical to be admissible. If it were correct the same thing would happen as when the legitimacy of a child is claimed, and as already seen, the right of action to demand the legitimacy is not transmitted to the heirs in every case and as an absolute right, but under certain limitations and circumstances. Now, were we to admit the doctrine of the court of

Rennes, the result would be that the claim for natural filiation would be more favored than one for legitimate filiation. This would be absurd, because it can not be conceived that the legislator should have granted a right of action to the heirs of the natural child, which is only granted under great limitations and in very few cases to those of a legitimate one. Some persons insist that the same rules that govern legitimate filiation apply by analogy to natural child are entitled to claim it in the cases prescribed by the article 118. The majority, however, are inclined to consider the right to claim acknowledgment as a personal right, and consequently, not transmissive to the heirs. Really there are no legal grounds to warrant the transmission. (Vol. 2, 229.)

In a decision like the present one it is impossible to bring forward the argument of analogy for the purpose of considering that the heirs of the natural child are entitled to the right of action which article 118 concedes to the heirs of the legitimate child. The existence of a provision for the one case and the absence thereof for the other is a conclusive argument that inclusio unius est exclusio alterius, and it can not be understood that the provision of law should be the same when the same reason does not hold in the one case as in the other.

The theory of law of transmission is also entirely inapplicable in this case. This theory, which in the Roman Law expressed the general rule than an heir who did not accept an inheritance during his lifetime was incapacitated from transmitting it to his own heirs, included at the same time the idea that if the inheritance was not transmitted because the heir did not possess it, there were, however, certain things which the heir held and could transmit. Such was the law and the right to accept the inheritance, for the existing reason that all rights, both real and personal, shall pass to the heir; quia haeres representat defunctum in omnibus et per omnia. According to the article 659 of the Civil Code, "the inheritance includes all the property, rights, and obligations of a person, which are not extinguished by his death." If the mother is the heir of her natural child, and the latter, among other rights during his lifetime was entitled to exercise an action of his acknowledgment against his father, during the life of the latter, if after his death in some of the excepting cases of article 137, such right, which is a portion of his inheritance, is transmitted to his mother as being his heir, and it was so understood by the court of Rennes when it considered the right in question, not as a personal and exclusive right of the child which is extinguished by his death, but a any other right which might be transmitted after his death. This right of supposed transmission is even less tenable than that sought to be sustained by the argument of analogy.

The right of action pertaining to the child to claim his legitimacy is in all respects superior to that of the child who claims acknowledgment as a natural child. And it is evident that the right of action to claim his legitimacy is not one of those rights which the legitimate child may transmit by inheritance to his heirs; it forms no part of the component rights of his inheritance. If it were so, there would have been no necessity to establish its transmissibility to heirs as an exception in the terms and conditions of article 118 of the code. So that, in order that it may constitute a portion of the child's inheritance, it is necessary that the conditions and the terms contained in article 118 shall be present, since without them, the right that the child held during his lifetime, being personal and exclusive in principle, and therefore, as a general rule not susceptible of transmission, would and should have been extinguished by his death. Therefore, where no express provision like that of article 118 exists, the right of action for the acknowledgment of a natural child is, in principle and without exception, extinguished by his death, and can not be transmitted as a portion of the inheritance of the deceased child.

On the other hand, if said right of action formed a part of the child's inheritance, it would be necessary to establish the doctrine that the right to claim such an acknowledgment from the presumed natural father and from his heirs is an absolute right of the heirs of the child, not limited by certain circumstances as in the case of the heirs of a natural child with a legitimate one to place the heirs of a natural child and his inheritance on a better footing than those of a legitimate child would not only be unreasonable, but, as stated in one of the above citations, most absurd and illegal in the present state of the law and in accordance with the general principles thereof.

For all of the foregoing reasons we hereby reverse the judgment appealed from in all its parts, without any special ruling as to the costs of this instance.

Mapa, Johnson, Carson, and Willard, JJ., concur.

Separate Opinions

TORRES, J., dissenting:

The questions arising from the facts and points of law discussed in this litigation between the parties thereto, decided in the judgment appealed from, and set up and discussed in this instance by the said parties in their respective briefs, are subordinate in the first place to the main point, submitted among others to the decision of this court, that is, whether the right of action brought to demand from the natural father, or from his heirs, the acknowledgment of the natural child which the former left at his death was, by operation of the law, transmitted to the natural mother by reason of the death of the said child acknowledged by her.

The second error assigned by the appellant in his brief refers exclusively to this important point of law.

Article 846 of the Civil Code prescribes:

The right of succession which the law grants natural children extends reciprocally in similar cases to the natural father or mother.

Article 944 reads:

If the acknowledged natural or legitimized child should die without issue, either legitimate or acknowledged by it, the father or mother who acknowledged it shall succeed to its entire estate, and if both acknowledged it and are alive, they shall inherit from it share and share alike.

It can not be inferred from the above legal provisions that from the right succession which the law grants the natural father or mother upon the death of their natural child, the right of heirs of any of the said parents to claim the acknowledgment of the natural child is excluded. No article is to be found in the Civil Code that expressly provides for such exclusion or elimination of the right of the heirs of the deceased child to claim his acknowledgment.

If under article 659 of said code, the inheritance includes all the property, rights, and obligations of a person, which are not extinguished by his death, it is unquestionable that among such rights stands that which the natural child had, while alive, to claim his acknowledgment as such from his natural father, or from the heirs of the latter. There is no reason or legal provision whatever to prevent the consideration that the right to claim acknowledgment of the filiation of a deceased child from his natural father, or from the heirs of the latter, is included in the hereditary succession of the deceased child in favor of his natural mother.

It is to be regretted that such an eminent writer as Manresa is silent on this special point, or that he is not very explicit in his comments on article 137 of the Civil Code. Among the various noted writers on law, Professor Sanchez Roman is the only one who has given his opinion in a categorical manner as to whether or not the right of action for the acknowledgment of a deceased natural child shall be considered transmissive to his heirs, as may bee seen from the following:

In order to complete the explanation of this article 137 of the Civil Code, three points must be decided: (1) Against whom shall an action for acknowledgment be brought under the cases and terms to which the two exceptions indicate in paragraphs 1 and 2 of article 137 refer? (2) Who is to represent the minor in bringing this action when neither the

father nor the mother has acknowledged him? (3) Should this right of action be considered as transmitted to the heirs or descendants of the natural child whether or not it was exercised at the time of his death?

With respect to the third, there is an entire absence of legal provisions, and at most, it might be deemed admissible as a solution, that the right of action to claim acknowledgment of a natural child is transmitted by analogy to his heirs on the same conditions and terms that it is transmitted to the descendants of the legitimate child, to claim his legitimacy, under article 118, but no more; because on his point nothing warrants placing the heirs of a natural child on a better footing than those of the legitimate child, and even to compare them would not fail to be strained and questionable matter, and one of great difficulty for decision by the courts, for the simple reason that for the heirs of the legitimate child the said article 118 exists, while for those of the natural child, as we have said, there is no provision in the code authorizing the same, although on the other hand there is none that prohibits it.

Certainly there is no article in the Civil Code, or any special law that bars the transmission to the heirs of a natural child, particularly to his natural mother, of the right of action to claim the acknowledgment of said natural child from the heirs of his deceased natural father.

According to the above-cited article 944 of the Civil Code, the only persons designated to succeed to the intestate estate of a natural child who died during minority or without issue are its natural father or mother who acknowledged it; consequently if by operation of the law his parents are his legal successors or heirs, it is unquestionable that by reason of the child's death the property, rights, and obligations of the deceased minor were, as a matter of fact, transmitted to them, among which was the right to demand the acknowledgment of the said deceased natural child from the heirs of the deceased natural father or mother, respectively, on account of having enjoyed uninterruptedly the status of natural child of the said deceased parents. (Arts. 135 and 136, Civil Code.)

At the death of the children, Teopista in 1902, and Jose in 1903, during their minority, and after the death of their natural father which took place in 1899, the natural mother of the said minors, Paula Conde, succeeded them in all of their property and rights, among which must necessarily appear and be included the right of action to claim the acknowledgment of said two children from the heirs of Icasiano Abaya, their deceased natural father. There is no legal provision or precept whatever excluding such right from those which, by operation of the law, were transmitted to the mother, Paula Conde, or expressly declaring that the said right to claim such acknowledgment is extinguished by the death of the natural children.

It is true that, as a general rule, an action for acknowledgment can not be brought by a surviving natural child after the death of his parents, except in the event he was a minor at the time of the death of either of his parents, as was the case with minors Teopista and Jose Conde, who, if living, would unquestionably be entitled to institute an action for acknowledgment against the presumed heirs of their natural father; and as there is no law that provides that said right is extinguished by the death of the same, and that the mother did not inherit it from the said minors, it is also unquestionable that Paula Conde, the natural mother and successor to the rights of said minors, is entitled to exercise the corresponding action for acknowledgment.

If the natural mother had no right of action against the heirs of the natural father, for the acknowledgment for her natural child, the unlimited and unconditional reciprocity established by the article 846 of the code would neither be true nor correct. It should be noticed that the relation of paternity and that of filiation between the above-mentioned father and children are both natural in character; therefore, the intestate succession of the said children of Paula Conde is governed exclusively by articles 944 and 945 of the said code.

It is true that nothing is provided by article 137 with reference to the transmission to the natural mother of the right to claim the acknowledgment of her natural children, but, as Sanchez Roman

says, it does not expressly prohibit it; and as opposed to the silence of the said article, we find the provisions of articles 846 and 944 of the Civil Code, which expressly recognize the right of the natural mother to succeed her natural child, a right which is transmitted to her by operation of law from the moment that the child ceases to exist.

The question herein does not bear upon the right of a child to claim his legitimacy, as provided in article 118 of the code, nor is it claimed that the rights of natural children and their mother are equal to those of legitimate ones, even by analogy.

The foundations of this opinion are based solely on the provisions of the above-mentioned articles of the code, and I consider that they are sustainable so long as it is not positively proven that the so often-mentioned right of action for acknowledgment is extinguished by the death of the minor natural child, and is not transmitted to the natural mother by express declaration or prohibition of the law, together with the property and other rights in the intestate succession.

In view of the considerations above set forth it is my opinion that it should be held: that Paula Conde, as the natural mother and sole heir of her children Teopista and Jose, was and is entitled to the right to institute proceedings to obtain the acknowledgment of the latter as natural children of the late Icasiano Abaya, from Roman Abaya, as heir and administrator of the estate of the said Icasiano Abaya; and that the said Teopista and Jose who died during their minority, three years after the death of their father, should be considered and acknowledged as such natural children of the latter, for the reason that while living they uninterruptedly enjoyed the status of his natural children. The judgment appealed from should be affirmed without any special ruling as to costs.

With regard to the declaration that the property of the late Icasiano, which Paula Conde might take, are of a reservable character, together with the other matter contained in the third error assigned by the appellant to the said judgment, the writer withholds his opinion until such time as the question may be raised between the parties in proper form.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. L-68053 May 7, 1990

LAURA ALVAREZ, FLORA ALVAREZ and RAYMUNDO ALVAREZ, petitioners, vs.THE HONORABLE INTERMEDIATE APELLATE COURT and JESUS YANES, ESTELITA YANES, ANTONIO YANES, ROSARIO YANES, and ILUMINADO YANES, respondents. 

FERNAN, C.J.:

This is a petition for review on certiorari seeking the reversal of: (a) the decision of the Fourth Civil Cases Division of the Intermediate Appellate Court dated August 31, 1983 in AC-G.R. CV No. 56626 entitled "Jesus Yanes et al. v. Dr. Rodolfo Siason et al." affirming the decision dated July 8, 1974 of the Court of First Instance of Negros Occidental insofar as it ordered the petitioners to pay jointly and severally the private respondents the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental and reversing the subject decision insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively and (b) the resolution of said appellate court dated May 30, 1984, denying the motion for reconsideration of its decision.

The real properties involved are two parcels of land identified as Lot 773-A and Lot 773-B which were originally known as Lot 773 of the cadastral survey of Murcia, Negros Occidental. Lot 773, with an area of 156,549 square meters, was registered in the name of the heirs of Aniceto Yanes under Original Certificate of Title No. RO-4858 (8804) issued on October 9, 1917 by the Register of Deeds of Occidental Negros (Exh. A).

Aniceto Yanes was survived by his children, Rufino, Felipe and Teodora. Herein private respondents, Estelita, Iluminado and Jesus, are the children of Rufino who died in 1962 while the other private respondents, Antonio and Rosario Yanes, are children of Felipe. Teodora was survived by her child, Jovita (Jovito) Alib. 1 It is not clear why the latter is not included as a party in this case.

Aniceto left his children Lots 773 and 823. Teodora cultivated only three hectares of Lot 823 as she could not attend to the other portions of the two lots which had a total area of around twenty-four hectares. The record does not show whether the children of Felipe also cultivated some portions of the lots but it is established that Rufino and his children left the province to settle in other places as a result of the outbreak of World War II. According to Estelita, from the "Japanese time up to peace time", they did not visit the parcels of land in question but "after liberation", when her brother went there to get their share of the sugar produced therein, he was informed that Fortunato Santiago, Fuentebella (Puentevella) and Alvarez were in possession of Lot 773. 2

It is on record that on May 19, 1938, Fortunato D. Santiago was issued Transfer Certificate of Title No. RF 2694 (29797) covering Lot 773-A with an area of 37,818 square meters. 3 TCT No. RF 2694 describes Lot 773-A as a portion of Lot 773 of the cadastral survey of Murcia and as originally registered under OCT No. 8804.

The bigger portion of Lot 773 with an area of 118,831 square meters was also registered in the name of Fortunato D. Santiago on September 6, 1938 Under TCT No. RT-2695 (28192 ). 4 Said

transfer certificate of title also contains a certification to the effect that Lot 773-B was originally registered under OCT No. 8804.

On May 30, 1955, Santiago sold Lots 773-A and 773-B to Monico B. Fuentebella, Jr. in consideration of the sum of P7,000.00. 5 Consequently, on February 20, 1956, TCT Nos. T-19291 and T-19292 were issued in Fuentebella's name. 6

After Fuentebella's death and during the settlement of his estate, the administratrix thereof (Arsenia R. Vda. de Fuentebella, his wife) filed in Special Proceedings No. 4373 in the Court of First Instance of Negros Occidental, a motion requesting authority to sell Lots 773-A and 773-B. 7 By virtue of a court order granting said motion, 8 on March 24, 1958, Arsenia Vda. de Fuentebella sold said lots for P6,000.00 to Rosendo Alvarez. 9 Hence, on April 1, 1958 TCT Nos. T-23165 and T-23166 covering Lots 773-A and 773-B were respectively issued to Rosendo Alvarez. 10

Two years later or on May 26, 1960, Teodora Yanes and the children of her brother Rufino, namely, Estelita, Iluminado and Jesus, filed in the Court of First Instance of Negros Occidental a complaint against Fortunato Santiago, Arsenia Vda. de Fuentebella, Alvarez and the Register of Deeds of Negros Occidental for the "return" of the ownership and possession of Lots 773 and 823. They also prayed that an accounting of the produce of the land from 1944 up to the filing of the complaint be made by the defendants, that after court approval of said accounting, the share or money equivalent due the plaintiffs be delivered to them, and that defendants be ordered to pay plaintiffs P500.00 as damages in the form of attorney's fees. 11

During the pendency in court of said case or on November 13, 1961, Alvarez sold Lots 773-A, 773-B and another lot for P25,000.00 to Dr. Rodolfo Siason. 12 Accordingly, TCT Nos. 30919 and 30920 were issued to Siason, 13 who thereafter, declared the two lots in his name for assessment purposes. 14

Meanwhile, on November 6, 1962, Jesus Yanes, in his own behalf and in behalf of the other plaintiffs, and assisted by their counsel, filed a manifestation in Civil Case No. 5022 stating that the therein plaintiffs "renounce, forfeit and quitclaims (sic) any claim, monetary or otherwise, against the defendant Arsenia Vda. de Fuentebella in connection with the above-entitled case." 15

On October 11, 1963, a decision was rendered by the Court of First Instance of Negros Occidental in Civil Case No. 5022, the dispositive portion of which reads:

WHEREFORE, judgment is rendered, ordering the defendant Rosendo Alvarez to reconvey to the plaintiffs lots Nos. 773 and 823 of the Cadastral Survey of Murcia, Negros Occidental, now covered by Transfer Certificates of Title Nos. T-23165 and T-23166 in the name of said defendant, and thereafter to deliver the possession of said lots to the plaintiffs. No special pronouncement as to costs.

SO ORDERED. 16

It will be noted that the above-mentioned manifestation of Jesus Yanes was not mentioned in the aforesaid decision.

However, execution of said decision proved unsuccessful with respect to Lot 773. In his return of service dated October 20, 1965, the sheriff stated that he discovered that Lot 773 had been subdivided into Lots 773-A and 773-B; that they were "in the name" of Rodolfo Siason who had purchased them from Alvarez, and that Lot 773 could not be delivered to the plaintiffs as Siason was "not a party per writ of execution." 17

The execution of the decision in Civil Case No. 5022 having met a hindrance, herein private respondents (the Yaneses) filed on July 31, 1965, in the Court of First Instance of Negros Occidental a petition for the issuance of a new certificate of title and for a declaration of nullity

of TCT Nos. T-23165 and T-23166 issued to Rosendo Alvarez. 18 Thereafter, the court required Rodolfo Siason to produce the certificates of title covering Lots 773 and 823.

Expectedly, Siason filed a manifestation stating that he purchased Lots 773-A, 773-B and 658, not Lots 773 and 823, "in good faith and for a valuable consideration without any knowledge of any lien or encumbrances against said properties"; that the decision in the cadastral proceeding 19 could not be enforced against him as he was not a party thereto; and that the decision in Civil Case No. 5022 could neither be enforced against him not only because he was not a party-litigant therein but also because it had long become final and executory. 20 Finding said manifestation to be well-founded, the cadastral court, in its order of September 4, 1965, nullified its previous order requiring Siason to surrender the certificates of title mentioned therein. 21

In 1968, the Yaneses filed an ex-parte motion for the issuance of an alias writ of execution in Civil Case No. 5022. Siason opposed it. 22 In its order of September 28, 1968 in Civil Case No. 5022, the lower court, noting that the Yaneses had instituted another action for the recovery of the land in question, ruled that at the judgment therein could not be enforced against Siason as he was not a party in the case. 23

The action filed by the Yaneses on February 21, 1968 was for recovery of real property with damages. 24 Named defendants therein were Dr. Rodolfo Siason, Laura Alvarez, Flora Alvarez, Raymundo Alvarez and the Register of Deeds of Negros Occidental. The Yaneses prayed for the cancellation of TCT Nos. T-19291 and 19292 issued to Siason (sic) for being null and void; the issuance of a new certificate of title in the name of the Yaneses "in accordance with the sheriffs return of service dated October 20, 1965;" Siason's delivery of possession of Lot 773 to the Yaneses; and if, delivery thereof could not be effected, or, if the issuance of a new title could not be made, that the Alvarez and Siason jointly and severally pay the Yaneses the sum of P45,000.00. They also prayed that Siason render an accounting of the fruits of Lot 773 from November 13, 1961 until the filing of the complaint; and that the defendants jointly and severally pay the Yaneses moral damages of P20,000.00 and exemplary damages of P10,000.00 plus attorney's fees of P4, 000.00. 25

In his answer to the complaint, Siason alleged that the validity of his titles to Lots 773-A and 773-B, having been passed upon by the court in its order of September 4, 1965, had become res judicata and the Yaneses were estopped from questioning said order. 26 On their part, the Alvarez stated in their answer that the Yaneses' cause of action had been "barred by res judicata, statute of limitation and estoppel." 27

In its decision of July 8, 1974, the lower court found that Rodolfo Siason, who purchased the properties in question thru an agent as he was then in Mexico pursuing further medical studies, was a buyer in good faith for a valuable consideration. Although the Yaneses were negligent in their failure to place a notice of lis pendens "before the Register of Deeds of Negros Occidental in order to protect their rights over the property in question" in Civil Case No. 5022, equity demanded that they recover the actual value of the land because the sale thereof executed between Alvarez and Siason was without court approval. 28 The dispositive portion of the decision states:

IN VIEW OF THE FOREGOING CONSIDERATION, judgment is hereby rendered in the following manner:

A. The case against the defendant Dr. Rodolfo Siason and the Register of Deeds are (sic) hereby dismmissed,

B. The defendants, Laura, Flora and Raymundo, all surnamed Alvarez being the legitimate children of the deceased Rosendo Alvarez are hereby ordered to pay jointly and severally the plaintiffs the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of Murcia Cadastre, Negros Occidental; the

sum of P2,000.00 as actual damages suffered by the plaintiff; the sum of P5,000.00 representing moral damages and the sum of P2.000 as attorney's fees, all with legal rate of interest from date of the filing of this complaint up to final payment.

C. The cross-claim filed by the defendant Dr. Rodolfo Siason against the defendants, Laura, Flora and Raymundo, all surnamed Alvarez is hereby dismissed.

D. Defendants, Laura, Flora and Raymundo, all surnamed Alvarez are hereby ordered to pay the costs of this suit.

SO ORDERED. 29

The Alvarez appealed to the then Intermediate Appellate Court which in its decision of August 31, 1983 30 affirmed the lower court's decision "insofar as it ordered defendants-appellants to pay jointly and severally the plaintiffs-appellees the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental, and is reversed insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively." 31 The dispositive portion of said decision reads:

WHEREFORE, the decision appealed from is affirmed insofar as it ordered defendants-appellants to pay jointly and severally the plaintiffs- appellees the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental, and is reversed insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively. No costs.

SO ORDERED. 32

Finding no cogent reason to grant appellants motion for reconsideration, said appellate court denied the same.

Hence, the instant petition. ln their memorandum petitioners raised the following issues:

1. Whethere or not the defense of prescription and estoppel had been timely and properly invoked and raised by the petitioners in the lower court.

2. Whether or not the cause and/or causes of action of the private respondents, if ever there are any, as alleged in their complaint dated February 21, 1968 which has been docketed in the trial court as Civil Case No. 8474 supra, are forever barred by statute of limitation and/or prescription of action and estoppel.

3. Whether or not the late Rosendo Alvarez, a defendant in Civil Case No. 5022, supra and father of the petitioners become a privy and/or party to the waiver (Exhibit 4-defendant Siason) in Civil Case No. 8474, supra where the private respondents had unqualifiedly and absolutely waived, renounced and quitclaimed all their alleged rights and interests, if ever there is any, on Lots Nos. 773-A and 773-B of Murcia Cadastre as appearing in their written manifestation dated November 6, 1962 (Exhibits "4" Siason) which had not been controverted or even impliedly or indirectly denied by them.

4. Whether or not the liability or liabilities of Rosendo Alvarez arising from the sale of Lots Nos. 773-A and 773-B of Murcia Cadastre to Dr. Rodolfo Siason, if ever there is any, could be legally passed or transmitted by operations (sic) of law to the petitioners without violation of law and due process . 33

The petition is devoid of merit.

As correctly ruled by the Court of Appeals, it is powerless and for that matter so is the Supreme Court, to review the decision in Civil Case No. 5022 ordering Alvarez to reconvey the lots in dispute to herein private respondents. Said decision had long become final and executory and with the possible exception of Dr. Siason, who was not a party to said case, the decision in Civil Case No. 5022 is the law of the case between the parties thereto. It ended when Alvarez or his heirs failed to appeal the decision against them. 34

Thus, it is axiomatic that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, so long as it remains unreversed, it should be conclusive upon the parties and those in privity with them in law or estate. 35 As consistently ruled by this Court, every litigation must come to an end. Access to the court is guaranteed. But there must be a limit to it. Once a litigant's right has been adjudicated in a valid final judgment of a competent court, he should not be granted an unbridled license to return for another try. The prevailing party should not be harassed by subsequent suits. For, if endless litigation were to be allowed, unscrupulous litigations will multiply in number to the detriment of the administration of justice. 36

There is no dispute that the rights of the Yaneses to the properties in question have been finally adjudicated in Civil Case No. 5022. As found by the lower court, from the uncontroverted evidence presented, the Yaneses have been illegally deprived of ownership and possession of the lots in question. 37 In fact, Civil Case No. 8474 now under review, arose from the failure to execute Civil Case No. 5022, as subject lots can no longer be reconveyed to private respondents Yaneses, the same having been sold during the pendency of the case by the petitioners' father to Dr. Siason who did not know about the controversy, there being no lis pendens annotated on the titles. Hence, it was also settled beyond question that Dr. Siason is a purchaser in good faith.

Under the circumstances, the trial court did not annul the sale executed by Alvarez in favor of Dr. Siason on November 11, 1961 but in fact sustained it. The trial court ordered the heirs of Rosendo Alvarez who lost in Civil Case No. 5022 to pay the plaintiffs (private respondents herein) the amount of P20,000.00 representing the actual value of the subdivided lots in dispute. It did not order defendant Siason to pay said amount. 38

As to the propriety of the present case, it has long been established that the sole remedy of the landowner whose property has been wrongfully or erroneously registered in another's name is to bring an ordinary action in the ordinary court of justice for reconveyance or, if the property has passed into the hands of an innocent purchaser for value, for damages. 39 "It is one thing to protect an innocent third party; it is entirely a different matter and one devoid of justification if deceit would be rewarded by allowing the perpetrator to enjoy the fruits of his nefarious decided As clearly revealed by the undeviating line of decisions coming from this Court, such an undesirable eventuality is precisely sought to be guarded against." 40

The issue on the right to the properties in litigation having been finally adjudicated in Civil Case No. 5022 in favor of private respondents, it cannot now be reopened in the instant case on the pretext that the defenses of prescription and estoppel have not been properly considered by the lower court. Petitioners could have appealed in the former case but they did not. They have therefore foreclosed their rights, if any, and they cannot now be heard to complain in another case in order to defeat the enforcement of a judgment which has longing become final and executory.

Petitioners further contend that the liability arising from the sale of Lots No. 773-A and 773-B made by Rosendo Alvarez to Dr. Rodolfo Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after his death.

Such contention is untenable for it overlooks the doctrine obtaining in this jurisdiction on the general transmissibility of the rights and obligations of the deceased to his legitimate children and heirs. Thus, the pertinent provisions of the Civil Code state:

Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.

Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.

Art. 1311. Contract stake effect only between the parties, their assigns and heirs except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property received from the decedent.

As explained by this Court through Associate Justice J.B.L. Reyes in the case of Estate of Hemady vs. Luzon Surety Co., Inc. 41

The binding effect of contracts upon the heirs of the deceased party is not altered by the provision of 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 thus made from the state is ultimately a payment by the heirs or distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive.

Under our law, therefore. the general rule is that a party's contractual rights and obligations are transmissible to the successors.

The rule is a consequence of the progressive "depersonalization" of patrimonial rights and duties that, as observed by Victorio Polacco has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other.

Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal consequences of their father's transaction, which gave rise to the present claim for damages. That petitioners did not inherit the property involved herein is of no moment because by legal fiction, the monetary equivalent thereof devolved into the mass of their father's hereditary estate, and we have ruled that the hereditary assets are always liable in their totality for the payment of the debts of the estate. 42

It must, however, be made clear that petitioners are liable only to the extent of the value of their inheritance. With this clarification and considering petitioners' admission that there are other properties left by the deceased which are sufficient to cover the amount adjudged in favor of private respondents, we see no cogent reason to disturb the findings and conclusions of the Court of Appeals.

WHEREFORE, subject to the clarification herein above stated, the assailed decision of the Court of Appeals is hereby AFFIRMED. Costs against petitioners.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila EN BANC

G.R. No. L-4170             January 31, 1952

Intestate of the late AGUSTIN MONTILLA, SR.; PEDRO LITONJUA, a movant-appellant, vs.AGUSTIN B. MONTILLA, JR., administrator-appellee;CLAUDIO MONTILLA, oppositor-appellee. PARAS, C.J.:

In Civil Case No. 868 of the court of First Instance of Negros Occidental, Pedro L. Litonjua obtained a judgment against Claudio Montilla for the payment of the sum of P4,000 with legal interest, plus costs amounting to P39.00 In due time, a writ of execution was issued, but no property of Claudio Montilla was found which could be levied upon.

On June 12, 1950 Pedro L. Litonjua filed in special Proceeding No 32 of the Court of First Instance of Negros Occidental, Intestate Estate of Agustin Montilla, Sr., deceased, a motion praying that the interest, property and participation of Claudio Montilla, one of the heirs of Agustin Montilla, Sr., in the latter's intestate estate be sold and out of the proceed the judgment debt of Claudio Montilla in favor of Pedro L. Litonjua be paid. This motion was opposed by Claudio Montilla and by Agustin Montilla, Jr., administrator of the intestate estate.

On August 7, 1950, the Court of First Instance of Negros Occidental issued an order denying the motion. From this order Pedro L. Litonjua appealed. In the case of Ortiga Brothers and Co. vs. Enage and Yap Tico, 18 Phil. 345, it was held that the creditor of the heirs of a deceased person is entitled to collect his claim out of the property which pertains by inheritance to said heirs, only after the debts of the testate or intestate succession have been paid and when the net assets that are divisible among the heirs are known, because the debts of the deceased must first be paid before his heirs can inherit. It was therein also held that a person who is not a creditor of a deceased, testate or intestate, has no right to intervene either in the proceedings brought in connection with the estate or in the settlement of the succession. We quote hereunder pertinent passages of the decision.

A person who, having claim against a deceased person which should be considered by the committee does not, after publication of the required notice, exhibit his claim to the committee as provided by law, shall be barred from recovering such demand or from pleading the same as an offset to any action, under the provisions of section 695 of the Code of Civil Procedure, excepting the case referred to in section 701 of the same; with still less reason can one who is not a creditor of the said deceased intervene in the proceedings relative to the latter's intestate estate and to the settlement of his succession (article 1034 of the Civil Code), because such creditor has no right or interest that call for the protection of the law and the courts, except in any remainder which may be found due the heir.

It is true that Yap Tico, as the creditor of the widow and heirs of the deceased Ildefonso, is entitled to collect what is due him out of the property left by the latter and which was inherited by such widow and heirs, but it is no less that only after all the debts of the said estate have been paid can it be known what net remainder will be left for division among the heirs, because the debts of the deceased must be paid before his heirs can inherit. (Arts. 659 et seq. 1026, 1027, and 1032 of the civil Code, and secs. 734 et seq., Code of Civil Code Procedure.)

An execution cannot legally be levied upon the property of an intestate succession to pay the debts of the widow and heirs of the deceased, until the credits held against the latter at the time of his death shall have been paid can the remaining property that pertains to the said debtors heirs can be attached (Art. 1034, aforecited, Civil Code.) (pp. 350-251)

The foregoing pronouncements are perfectly applicable to the case at bar, because the appellant is not a creditor of the deceased Agustin Montilla, Sr. and he seeks to collect his claim out of the inheritance of Claudio Montilla, an heir, before the net assets of the intestate estate have been determined.

Wherefore, the appealed order is affirmed, and it is so ordered with costs against the appellant.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-24434           January 17, 1968

HEIRS OF PEDRO REGANON, JOVENCIA REGANON, MENCIA REGANON, JOSEFA REGANON, VIOLETA REGANON, and FLORA REGANON, plaintiffs-appellees, vs.RUFINO IMPERIAL, defendant-appellant.

Torcuato L. Galon for plaintiffs-appellees. V. Lacaya for defendant-appellant.

BENGZON, J.P., J.:

This is an appeal from the orders dated June 9, 1964, July 14, 1964 and August 11, 1964, respectively, of the Court of First Instance of Zamboanga del Norte (Dipolog, Branch II).

The facts of the case are admitted by both parties.

On February 22, 1963, the heirs of Pedro Reganon filed a complaint for recovery of ownership and possession of about one-hectare portion of a parcel of land (Lot No. 1 or Lot No. 4952, situated at Miasi, Polanco, Zamboanga del Norte, covered by O.T.C. No. 1447, with an area of 7.9954 hectares), with damages, against Rufino Imperial.

Defendant not having filed an answer within the reglementary period, the plaintiffs on April 8, 1963 filed a motion to declare the former in default. The trial court granted the motion in its order dated April 10, 1963.

On April 23, 1963, the plaintiffs presented their evidence ex parte before the Clerk of Court acting as Commissioner. The court a quo on May 6, 1963, rendered a decision declaring the plaintiffs lawful owners of the land in question and entitled to its peaceful possession and enjoyment; ordering defendant immediately to vacate the portion occupied by him and to restore the peaceful possession thereof to plaintiffs; and sentencing defendant to pay plaintiffs the amount of P1,929.20 and the costs.

On November 29, 1963, the plaintiffs filed a motion for issuance of a writ of execution. This was granted by the trial court in its order of December 9, 1963.

The Deputy Provincial Sheriff submitted on February 8, 1964 a sheriff's return of proceedings reporting the garnishment and sale of a carabao and goat belonging to defendant for P153.00, and the attachment and sale of defendant's parcel of land covered by Tax Declaration No. 4694, situated in Sicet, Polanco, Zamboanga del Norte, for P500.00 — both sales having been made to the only bidder, plaintiffs' counsel Atty. Vic T. Lacaya.

On March 13, 1964, the Philippine National Bank deposited in the Philippine National Bank-Dipolog Branch the residuary estate of its former ward, Eulogio Imperial, in the sum of P10,303.80, pursuant to an order of Branch I of the Court of First Instance of Zamboanga del Norte in Sp. Proc. No. R-145.

On May 25, 1964, the heirs of said Eulogio Imperial, one of whom is defendant, executed a Deed of Extrajudicial Partition of the residuary estate, wherein was apportioned P1,471.97 as defendant Rufino Imperial's share.

Informed of this development, the plaintiffs filed on June 5, 1964 an ex parte motion for issuance of an alias writ of execution and of an order directing the manager, or the representative, of the Philippine National Bank-Dipolog Branch, to hold the share of defendant and deliver the same to the provincial sheriff of the province to be applied to the satisfaction of the balance of the money judgment. This was granted by the trial court (Branch II) in its order dated June 9, 1964.

On June 17, 1964, the Deputy Provincial Sheriff issued a sheriffs notification for levy addressed to defendant, giving notice of the garnishment of the rights, interests, shares and participation that defendant may have over the residuary estate of the late Eulogio Imperial, consisting of the money deposited in the Philippine National Bank-Dipolog Branch.

Defendant, through counsel, appearing for the first time before the trial court, on June 24, 1964 filed a motion for reconsideration of the order dated June 9, 1964, and to quash the alias writ of execution issued pursuant to it, to which plaintiffs filed their opposition on July 6, 1964. On July 14, 1964, the trial court denied defendant's aforesaid motion.

Defendant's second motion for reconsideration likewise having denied by the trial court in its order of August 11, 1964, defendant appealed to Us, raising the following issues:

(1) Upon the death of a ward, is the money accumulated in his guardianship proceedings and deposited in a bank, still considered in custodia legis and therefore cannot be attached?

(2) Is the residuary estate of a U.S. veteran, which consists in the aggregate accumulated sum from the monthly allowances given him by the United States Veterans Administration (USVA) during his lifetime, exempt from execution?

Defendant-appellant argues that the property of an incompetent under guardianship is in custodia legis and therefore can not be attached.

It is true that in a former case 1 it was held that property under custodia legis can not be attached. But this was under the old Rules of Court. The new Rules of Court 2 now specifically provides for the procedure to be followed in case what is attached is in custodia legis. 3 The clear import of this new provision is that property under custodia legis is now attachable, subject to the mode set forth in said rule.

Besides, the ward having died, the guardianship proceedings no longer subsist:

The death of the ward necessarily terminates the guardianship, and thereupon all powers and duties of the guardian cease, except the duty, which remains, to make a proper accounting and settlement in the probate court. 4

As a matter of fact, the guardianship proceedings was ordered conditionally closed by Branch I of the Court of First Instance of Zamboanga del Norte in which it was pending, in its order of February 8, 1964, where it stated —

In the meantime, the guardian Philippine National Bank is hereby directed to deposit the residuary estate of said ward with its bank agency in Dipolog, this province, in the name of the estate of the deceased ward Eulogio Imperial, preparatory to the eventual distribution of the same to the heirs when the latter shall be known, and upon proof of deposit of said residuary estate, the guardian Philippine National Bank shall forthwith be relieved from any responsibility as such, and this proceeding shall be considered closed and terminated. 5

And the condition has long been fulfilled, because on March 13, 1964 the Philippine National Bank-Manila deposited the residuary estate of the ward with the Philippine National Bank-Dipolog Branch, evidenced by a receipt attached to the records in Sp. Proc. No. R-145. 6

When Eulogio Imperial died on September 13, 1962, the rights to his succession — from the moment of his death — were transmitted to his heirs, one of whom is his son and heir, defendant-appellant herein. 7 This automatic transmission can not but proceed with greater ease and certainty than in this case where the parties agree that the residuary estate is not burdened with any debt. For,

The rights to the succession of a person are transmitted from the moment of death, and where, as in this case, the heir is of legal age and the estate is not burdened with any debts, said heir immediately succeeds, by force of law, to the dominion, ownership, and possession of the properties of his predecessor and consequently stands legally in the shoes of the latter. 8

That the interest of an heir in the estate of a deceased person may be attached for purposes of execution, even if the estate is in the process of settlement before the courts, is already a settled matter in this jurisdiction. 9

It is admitted that the heirs of Eulogio Imperial, including herein defendant-appellant, have on May 25, 1964 executed a Deed of Extrajudicial Partition. This instrument suffices to settle the entire estate of the decedent — provided all the requisites for its validity are fulfilled 10 — even without the approval of the court. Therefore, the estate for all practical purposes have been settled. The heirs are at full liberty to withdraw the residuary estate from the Philippine National Bank-Dipolog Branch and divide it among themselves. The only reason they have not done so is because of the alleged illegal withdrawal from said estate of the amount of P1,080.00 by one Gloria Gomez by authority of Branch I of the Court of First Instance of Zamboanga del Norte, which incident is now on appeal before the Court of Appeals. This appeal, however, does not detract any from the fact that the guardianship proceedings is closed and terminated and the residuary estate no longer under custodia legis.

Finally, it is defendant-appellant's position that the residuary estate of Eulogio Imperial, a former U.S. veteran, having been set aside from the monthly allowances given him by the United States Veterans Administration (USVA) during his lifetime, is exempt from execution.

Any pension, annuity, or gratuity granted by a Government to its officers or employees in recognition of past services rendered, is primordially aimed at tiding them over during their old age and/or disability. This is therefore a right personalissima, purely personal because founded on necessity. It requires no argument to show that where the recipient dies, the necessity motivating or underlying its grant necessarily ceases to be. Even more so in this case where the law 11 providing for the exemption is calculated to benefit U.S. veterans residing here, and is therefore merely a manifestation of comity.

Besides, as earlier stated, the heirs of Eulogio Imperial, one of whom is appellant, have already executed a Deed of Extrajudicial Partition — the end result of which is that the property is no longer the property of the estate but of the individual heirs. And it is settled that:

When the heirs by mutual agreement have divided the estate among themselves, one of the heirs can not therefore secure the appointment of an administrator to take charge of and administer the estate or a part thereof. The property is no longer the property of the estate, but of the individual heirs, whether it remains undivided or not. 12

WHEREFORE, the orders appealed from are hereby affirmed, with costs against defendant-appellant. So ordered

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-45320             January 26, 1939

Intestate estate of the deceased Macario Carrillo. ROSENDA ALMEIDA VIUDA DE CARRILLO, petitioner-appellee, vs.CORAZON EDELMIRA CARRILLO DE GALANG, GRACIA CARRILLO, and ROMULO CARRILLO, oppositors-appellants.

Deogracias J. Puyat for appellants.Ramon Diokno for appellee.

IMPERIAL, J.:

Macario Carrillo died in the City of Manila on May 17, 1931, leaving as next of kin, his widow, Rosenda Almeida, the appellee, and his three children by his first marriage, Corazon Edelmira Carrillo, Romulo Carrillo and Gracia Carrillo, the appellants. With the consent of all the relatives, the appellee caused the remains of the deceased to be buried in the private lot of the Intengan family in the North Cemetery, Manila, to be transferred later after a period of three years but not more than five, upon paying P100 for the use of the lot. Later on, in the Court of First Instance of Manila, the intestate proceedings of the decedent were commenced, special proceedings No. 39632, and in the project of partition submitted by all the co-heirs, and approved by the court, said co-heirs agreed upon the following:

(6) Out of love for her late husband, Macario Carrillo, the party of the first part (Rosenda Almeida) undertakes to pay the expenses of the last illness of the decedent, such as medicine, physician's fees and nurses; cost of the funeral and the care of the tomb.

Sometime in January, 1963, the appellee built a mausoleum in Biñan, Province of Laguna, for the remains of her late husband. Shortly before the expiration of the period of five years for the exhumation of said remains, the appellants secured the consent of the appellee to have the remains of the deceased transferred to the Ermita Church in Manila. As we was made to understand that such transfer would only be a temporary and that it would be easier to transfer the remains from that place to the mausoleum, which she had built in Biñan, the appellee gave her consent. Having been informed by her lawyer that she should not have given her consent, she withdrew it, and inasmuch as the appellants were about to remove and transfer the remains, the appellee moved the court to enjoin the appellants from removing the remains to the Ermita Church. The motion was duly heard and thereafter the court made permanent the preliminary injunction which had been issued, and ordered the appellants to abstain from removing the remains of the deceased and transferring them to another place. Thereupon, the appeal was perfected.

The only question raised in the three assignments of error made by the appellants, is whether or not they have a better right than the appellee to disinter the remains of the deceased and transfer them to the place they had chosen. The court held that the appellee's right, as the widow, is preferred, as may be gathered from the spirit of section 1103 of the Revised Administrative Code and from some American cases. We hold that the court correctly decided the case and did not commit any of the assigned errors.

In this jurisdiction there is no express law which determines the preference, among the next of kin of a deceased, with regard to the disposition of his remains.

Leaving aside for the moment the law upon the matter and the American cases, to which we will later on refer, we believe that the agreement between the parties is decisive of the controversy. The parties agreed in the partition approved by the court that the widow, the appellee, out of love for her late husband, would undertake the care of his tomb. The word tomb, which in this case means the grave where the body of the deceased was buried, for at the time of the partition-agreement Macario Carrillo had already died, has been used without any restriction or limitation, and it should be interpreted as meaning both the grave at the North Cemetery and that which might be determined after the five-year period for the conservation of the remains of the deceased. If the intention of the parties referred only to the burial of the deceased in the North Cemetery for five years, which is the maximum period allowed by law, this idea could have been easily expressed.

We hold, then, that under the terms of said agreement, the appellee has a better right than the appellants, and the latter cannot object to the transfer of the remains of the deceased by the appellee to the mausoleum she built in Biñan, Laguna.

The appellants allege that the appellee consented to the transfer of the remains to the Ermita Church and that now she cannot validly oppose it. We find no merit in this contention because it appears that the appellee erroneously gave her consent, for she was made to believe by the appellants that the transfer of the remains to the Ermita Church would only be temporary, and that her consent thereto would facilitate the subsequent transfer to the mausoleum in Biñan.

In this jurisdiction there is no law that expressly determines the right care, possession and disposition of the remains of the deceased. Section 1103 of the Revised Administrative Code of 1917, quoted by the court, provides that the obligation to bury the remains of a deceased, falls, firstly, on the surviving spouse; if the deceased was not married, the obligation falls upon the closest next of kin; and if he dies with no surviving relative, the burial is the concern of the authorities of the municipality where he died. This legal provision has no direct application to the controversy, for the simple reason that it refers to the burial of a dead body, which he is not the case here. However, it is being mentioned merely to point out that even in the case the right of the surviving spouse is considered preferred and superior to that of the next of kin. In the United States of America the superior and preferred right of the surviving spouse to the burial and any other legal disposition of the remains of the husband or of the wife, has always been held undisputed. "It is generally conceded that on the death of a husband or a wife, the primary and paramount right to possession of the body and to control the burial or other legal disposition thereof is in the surviving spouse, and not in the next of kin, at least in the absence of a different provision by the deceased." (15 Am. Jur., par. 9, p. 834; Southern L. & Health Ins. Co. vs. Morgan, 21 Ala. App., 5; 105 So., 161; Enos vs. Snyder, 131 Cal., 68; 63 Pac., 170; O'Donnell vs. Slack, 123 Cal., 285; 55 Pac., 906; Boyle vs. Chandler, 33 Del., 323; 138 A., 273; Louisville & N. R. Co. vs. Wilson, 123 Ga., 62; 51 S. E., 24; Anderson vs. Acheson, 132 Iowa, 744; 110 N. W., 335.) "The surviving spouse is entitled to select the place of burial and the place of reinterment if the remains are removed after burial." (15 Am. Jur., par. 9, p. 834.) "The better rule seems to be, however, that if the widow has not waived her right, she may, against the objections of the next of kin, remove her husband's body, after interment, to another place of sepulture." (15 Am. Jur., par. 21, p. 843; Bunol vs. Bunol, 12 La App., 675; 127 So., 70; Hackett vs. Hackett, 19 L. R. A., 558; 49 Am. St. Rep., 762.)

For the foregoing reasons, the appealed order is affirmed, with costs in this instance against the appellants. So ordered.

Avanceña, C.J., Villa-Real, Diaz, Laurel, Concepcion, and Moran, JJ., con

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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.

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).

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.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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.

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 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:

A G R E E M E N T

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,

A N D

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.

W I T N E S S E T H

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 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 decedentleft 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 "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.

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 —

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:

(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" 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 of First Instance of Rizal in Case No. L-28040 is hereby affirmed; 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.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION 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.

.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 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

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

 G.R. No. L-8437         November 28, 1956ESTATE OF K. H. HEMADY, deceased,vs.LUZON SURETY CO., INC., claimant-appellant. D E C I S I O NREYES, J. B. L., J.:Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal, presided by Judge Hermogenes Caluag, dismissing its claim against the Estate of K. H. Hemady (Special Proceeding No. Q-293) for failure to state a cause of action.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. The twenty counterbonds, or indemnity agreements, all contained the following stipulations:“Premiums. – As consideration for this suretyship, the undersigned jointly and severally, agree to pay the COMPANY the sum of ________________ (P______) pesos, Philippines Currency, in advance as premium there of for every __________ months or fractions thereof, this ________ or any renewal or substitution thereof is in effect.Indemnity. – The undersigned, jointly and severally, agree at all times to indemnify the COMPANY and keep it indemnified and hold and save it harmless from and against any and all damages, losses, costs, stamps, taxes, penalties, charges, and expenses of whatsoever kind and nature which the COMPANY shall or may, at any time sustain or incur in consequence of having become surety upon this bond or any extension, renewal, substitution or alteration thereof made at the instance of the undersigned or any of them or any order executed on behalf of the undersigned or any of them; and to pay, reimburse and make good to the COMPANY, its successors and assigns, all sums and amount of money which it or its representatives shall pay or cause to be paid, or become liable to pay, on account of the undersigned or any of them, of whatsoever kind and nature, including 15% of the amount involved in the litigation or other matters growing out of or connected therewith for counsel or attorney’s fees, but in no case less than P25. It is hereby further agreed that in case of extension or renewal of this ________ we equally bind ourselves for the payment thereof under the same terms and conditions as above mentioned without the necessity of executing another indemnity agreement for the purpose and that we hereby equally waive our right to be notified of any renewal or extension of this ________ which may be granted under this indemnity agreement.Interest on amount paid by the Company. – Any and all sums of money so paid by the company shall bear interest at the rate of 12%  per annum which interest, if not paid, will be accummulated and added to the capital quarterly order to earn the same interests as the capital and the total sum thereof, the capital and interest, shall be paid to the COMPANY as soon as the COMPANY shall have become liable therefore, whether it shall have paid out such sums of money or any part thereof or not.xxx                    xxx                    xxxWaiver. – It is hereby agreed upon by and between the undersigned that any question which may arise between them by reason of this document and which has to be submitted for decision to Courts of Justice shall be brought before the Court of competent jurisdiction in the City of

Manila, waiving for this purpose any other venue. Our right to be notified of the acceptance and approval of this indemnity agreement is hereby likewise waived.xxx                    xxx                    xxxOur Liability Hereunder. – It shall not be necessary for the COMPANY to bring suit against the principal upon his default, or to exhaust the property of the principal, but the liability hereunder of the undersigned indemnitor shall be jointly and severally, a primary one, the same as that of the principal, and shall be exigible immediately upon the occurrence of such default.” (Rec. App. pp. 98- 102.)The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the twenty bonds it had executed in consideration of the counterbonds, and further asked for judgment for the unpaid premiums and documentary stamps affixed to the bonds, with 12 per cent interest thereon.Before answer was filed, and upon motion of the administratrix of Hemady’s estate, the lower court, by order of September 23, 1953, dismissed the claims of Luzon Surety Co., on two grounds: (1) that the premiums due and cost of documentary stamps were not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady), since they were not liabilities incurred after the execution of the counterbonds; and (2) that “whatever losses may occur after Hemady’s death, are not chargeable to his estate, because upon his death he ceased to be guarantor.”Taking up the latter point first, since it is the one more far reaching in effects, the reasoning of the court below ran as follows:“The administratrix further contends that upon the death of Hemady, his liability as a guarantor terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim cannot be considered contingent. This Court believes that there is merit in this contention and finds support in Article 2046 of the new Civil Code. It should be noted that a new requirement has been added for a person to qualify as a guarantor, that is: integrity. As correctly pointed out by the Administratrix, integrity is something purely personal and is not transmissible. Upon the death of Hemady, his integrity was not transmitted to his estate or successors. Whatever loss therefore, may occur after Hemady’s death, are not chargeable to his estate because upon his death he ceased to be a guarantor.Another clear and strong indication that the surety company has exclusively relied on the personality, character, honesty and integrity of the now deceased K. H. Hemady, was the fact that in the printed form of the indemnity agreement there is a paragraph entitled ‘Security by way of first mortgage, which was expressly waived and renounced by the security company. The security company has not demanded from K. H. Hemady to comply with this requirement of giving security by way of first mortgage. In the supporting papers of the claim presented by Luzon Surety Company, no real property was mentioned in the list of properties mortgaged which appears at the back of the indemnity agreement.” (Rec. App., pp. 407-408).We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under the Civil Code of 1889 (Article 1257), the rule is that -“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 or by 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 and 776 of the New Civil Code (and Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming Article 1311 already quoted.“ART. 774. – Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.”

“ART. 776. – The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.”In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:“Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and can not be regarded as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44).xxx                    xxx                    xxx“The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of a deceased person cannot be held to be “third persons” in relation to any contracts touching the real estate of their decedent which comes in to their hands by right of inheritance; they take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights.” (See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs. Salak, 91 Phil., 265)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 thus 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 heirs would have been entitled to receive.Under our law, therefore, the general rule is that a party’s contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive “depersonalization” of patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other. The transition is marked by the disappearance of the imprisonment for debt.Of the three exceptions fixed by Article 1311, the nature of the 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. What did the creditor Luzon Surety Co. expect of K. H. Hemady when it accepted the latter as surety in the counterbonds? Nothing but 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 an obligation to give; and to the Luzon Surety Co., it was indifferent that 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 second exception of Article 1311, p. 1, 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.“(b)  Intransmisibilidad por pacto. – Lo general es la transmisibilidad de darechos y obligaciones; le excepcion, la intransmisibilidad. Mientras nada se diga en contrario impera el principio de la transmision, como elemento natural a toda relacion juridica, salvo las personalisimas. Asi, para la no transmision, es menester el pacto expreso, porque si no, lo convenido entre partes trasciende a sus herederos.Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen los efectos de los vinculos juridicos creados por sus antecesores, y para evitarlo, si asi se quiere, es indespensable convension terminante en tal sentido.

Por su esencia, el derecho y la obligacion tienden a ir más allá de las personas que les dieron vida, y a ejercer presion sobre los sucesores de esa persona; cuando no se quiera esto, se impone una estipulacion limitativa expresamente de la transmisibilidad o de cuyos tirminos claramente se deduzca la concresion del concreto a las mismas personas que lo otorgon.” (Scaevola, Codigo Civil, Tomo XX, p. 541-542) ( emphasis supplied.)Because under the law (Article 1311), a person who enters into a contract is deemed to have contracted for himself and his heirs and assigns, it is unnecessary for him to expressly stipulate to that effect; hence, his failure to do so is no sign that he intended his bargain to terminate upon his death. Similarly, that the Luzon Surety Co., did not require bondsman Hemady to execute a mortgage indicates nothing more than the company’s faith and confidence in the financial stability of the surety, but not that his obligation was strictly personal.The third exception to the transmissibility of obligations under Article 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, as is the case in legal support (Article 300), parental authority (Article 327), usufruct (Article 603), contracts for a piece of work (Article 1726), partnership (Article 1830 and agency (Article 1919). By contract, the articles of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is extinguished upon the death of the guarantor or the surety.The lower court sought to infer such a limitation from Art. 2056, to the effect that “one who is obliged to furnish a guarantor must present a person who possesses integrity, capacity to bind himself, and sufficient property to answer for the obligation which he guarantees”. It will be noted, however, that the law requires these qualities to be present only at the time of the perfection of the contract of guaranty. It is self-evident that once the contract has become perfected and binding, the supervening incapacity of the guarantor would not operate to exonerate him of the eventual liability he has contracted; and if that be true of his capacity to bind himself, it should also be true of his integrity, which is a quality mentioned in the article alongside the capacity.The foregoing concept is confirmed by the next Article 2057, that runs as follows:“ART. 2057. – If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent, the creditor may demand another who has all the qualifications required in the preceding article. The case is excepted where the creditor has required and stipulated that a specified person should be guarantor.”From this article it should be immediately apparent that the supervening dishonesty of the guarantor (that is to say, the disappearance of his integrity after he has become bound) does not terminate the contract but merely entitles the creditor to demand a replacement of the guarantor. But the step remains optional in the creditor: it is his right, not his duty; he may waive it if he chooses, and hold the guarantor to his bargain. Hence Article 2057 of the present Civil Code is incompatible with the trial court’s stand that the requirement of integrity in the guarantor or surety makes the latter’s undertaking strictly personal, so linked to his individuality that the guaranty automatically terminates upon his death.The contracts of suretyship entered into by K. H. 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, therefore, give rise to contingent claims provable against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p. 437; Gaskell & Co. vs. Tan Sit, 43 Phil. 810, 814).“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 in favor 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. (May vs. Vann, 15 Pla., 553; Gibson vs. Mithell, 16 Pla., 519; Maxey vs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs. Pulliam, 7 Baxt. [Tenn.], 119; Ernst vs. Nou, 63 Wis., 134.)”For defendant administratrix it is averred that the above doctrine refers to a case where the surety files claims against the estate of the principal debtor; and it is urged that the rule does not apply to the case before us, where the late Hemady was a surety, not a principal debtor. The argument evinces a superficial view of the relations between parties. If under the Gaskell ruling, the Luzon Surety Co., as guarantor, could file a contingent claim against the estate of the principal debtors if the latter should die, there is absolutely no reason why it could not file such a claim against the estate of Hemady, since Hemady is a solidary co-debtor of his principals. What the Luzon Surety Co. may claim from the estate of a principal debtor it may equally claim from the estate of Hemady, since, in view of the existing solidarity, the latter does not even enjoy the benefit of exhaustion of the assets of the principal debtor.The foregoing ruling is of course without prejudice to the remedies of the administratrix against the principal debtors under Articles 2071 and 2067 of the New Civil Code.Our conclusion is that the solidary guarantor’s liability is not extinguished by his death, and that in such event, the Luzon Surety Co., had the right to file against the estate a contingent claim for reimbursement. It becomes unnecessary now to discuss the estate’s liability for premiums and stamp taxes, because irrespective of the solution to this question, the Luzon Surety’s claim did state a cause of action, and its dismissal was erroneous.WHEREFORE, the order appealed from is reversed, and the records are ordered remanded to the court of origin, with instructions to proceed in accordance with law. Costs against the Administratrix- Appellee. So ordered.Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia and Felix, JJ., concur.