TRUST (IN GENERAL)G.R. No. L-26699 March 16, 1976BENITA SALAO, assisted by her husband, GREGORIO MARCELO; ALMARIO ALCURIZA, ARTURO ALCURIZA, OSCAR ALCURIZA and ANITA ALCURIZA, the latter two being minors are represented by guardianad litem, ARTURO ALCURIZA,plaintiffs-appellants,vs.JUAN S. SALAO, later substituted by PABLO P. SALAO, Administrator of the Intestate of JUAN S. SALAO; now MERCEDES P. VDA. DE SALAO, ROBERTO P. SALAO, MARIA SALAO VDA. DE SANTOS, LUCIANA P. SALAO, ISABEL SALAO DE SANTOS, and PABLO P. SALAO, as successors-in-interest of the late JUAN S. SALAO, together with PABLO P. SALAO, Administrator,defendants-appellants.Eusebio V. Navarro for plaintiffs-appellants.Nicolas Belmonte & Benjamin T. de Peralta for defendants-appellants.AQUINO,J.:This litigation regarding a forty-seven-hectare fishpond located at Sitio Calunuran, Hermosa, Bataan involves the law of trusts and prescription. The facts are as follows:The spouses Manuel Salao and Valentina Ignacio of Barrio Dampalit, Malabon, Rizal begot four children named Patricio, Alejandra, Juan (Banli) and Ambrosia. Manuel Salao died in 1885. His eldest son, Patricio, died in 1886 survived by his only child. Valentin Salao.There is no documentary evidence as to what, properties formed part of Manuel Salao's estate, if any. His widow died on May 28, 1914. After her death, her estate was administered by her daughter Ambrosia.It was partitioned extrajudicially in a deed dated December 29, 1918 but notarized on May 22, 1919 (Exh. 21). The deed was signed by her four legal heirs, namely, her three children, Alejandra, Juan and Ambrosia, and her grandson, Valentin Salao, in representation of his deceased father, Patricio.The lands left by Valentina Ignacio, all located at Barrio Dampalit were as follows:Nature of Land Area in squmeters(1) One-half interest in a fishpond which she had inherited from her parents, Feliciano Ignacio and Damiana Mendoza, and the other half of which was owned by her co-owner, Josefa Sta. Ana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,700(2) Fishpond inherited from her parents . . . . . . . . . . . . 7,418(3) Fishpond inherited from her parents . . . . . . . . . . . . . 6,989(4) Fishpond with a bodega for salt . . . . . . . . . . . . . . . . 50,469(5) Fishpond with an area of one hectare, 12 ares and 5 centares purchased from Bernabe and Honorata Ignacio by Valentina Ignacio on November 9, 1895 with a bodega for salt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,205(6) Fishpond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,000(7) One-half interest in a fishpond with a total area of 10,424 square meters, the other half was owned by A. Aguinaldo . . . . . . . . . . . . . . . . . . . . . . . 5,217(8) Riceland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,454(9) Riceland purchased by Valentina Ignacio from Eduardo Salao on January 27, 1890 with a house and two camarins thereon . . . . . . . . . . . . . . . . . . 8,065(10) Riceland in the name of Ambrosia Salao, with an area of 11,678 square meters, of which 2,173 square meters were sold to Justa Yongco . . . . . . . . . .9,505TOTAL . . . . . . . . . . . . .. 179,022 squaremetersTo each of the legal heirs of Valentina Ignacio was adjudicated a distributive share valued at P8,135.25. In satisfaction of his distributive share, Valentin Salao (who was then already forty-eight years old) was given the biggest fishpond with an area of 50,469 square meters, a smaller fishpond with an area of 6,989 square meters and the riceland with a net area of 9,905 square meters. Those parcels of land had an aggregate appraised value of P13,501 which exceeded Valentin's distributive share. So in the deed of partition he was directed to pay to his co-heirs the sum of P5,365.75. That arrangement, which was obviously intended to avoid the fragmentation of the lands, was beneficial to Valentin.In that deed of partition (Exh. 21) it was noted that "desde la muerte de Valentina Ignacio y Mendoza, ha venido administrando sus bienes la referida Ambrosia Salao" "cuya administracion lo ha sido a satisfaccion de todos los herederos y por designacion los mismos". It was expressly stipulated that Ambrosia Salao was not obligated to render any accounting of her administration "en consideracion al resultado satisfactorio de sus gestiones, mejoradas los bienes y pagodas por ella las contribusiones (pages 2 and 11, Exh. 21).By virtue of the partition the heirs became "dueos absolutos de sus respectivas propiedadas, y podran inmediatamente tomar posesion de sus bienes, en la forma como se han distribuido y llevado a cabo las adjudicaciones" (page 20, Exh. 21).The documentary evidence proves that in 1911 or prior to the death of Valentina Ignacio her two children, Juan Y. Salao, Sr. and Ambrosia Salao, secured a Torrens title, OCT No. 185 of the Registry of Deeds of Pampanga, in their names for a forty-seven-hectare fishpond located at Sitio Calunuran, Lubao, Pampanga (Exh. 14). It is also known as Lot No. 540 of the Hermosa cadastre because that part of Lubao later became a part of Bataan.The Calunuran fishpond is the bone of contention in this case.Plaintiffs' theory is that Juan Y. Salao, Sr. and his sister Ambrosia had engaged in the fishpond business. Where they obtained the capital is not shown in any documentary evidence. Plaintiffs' version is that Valentin Salao and Alejandra Salao were included in that joint venture, that the funds used were the earnings of the properties supposedly inherited from Manuel Salao, and that those earnings were used in the acquisition of the Calunuran fishpond. There is no documentary evidence to support that theory.On the other hand, the defendants contend that the Calunuran fishpond consisted of lands purchased by Juan Y. Salao, Sr. and Ambrosia Salao in 1905, 1906, 1907 and 1908 as, shown in their Exhibits 8, 9, 10 and 13. But this point is disputed by the plaintiffs.However, there can be no controversy as to the fact that after Juan Y. Salao, Sr. and Ambrosia Salao secured a Torrens title for the Calunuran fishpond in 1911 they exercised dominical rights over it to the exclusion of their nephew, Valentin Salao.Thus, on December 1, 1911 Ambrosia Salao sold underpacto de retrofor P800 the Calunuran fishpond to Vicente Villongco. The period of redemption was one year. In the deed of sale (Exh19) Ambrosia confirmed that she and her brother Juan were thedueos proindivisosof the saidpesqueria.On December 7, 1911 Villongco, the vendee a retro, conveyed the same fishpond to Ambrosia by way of lease for ananual canonof P128 (Exh. 19-a).After the fishpond was redeemed from Villongco or on June 8, 1914 Ambrosia and Juan sold it underpacto de retroto Eligio Naval for the sum of P3,360. The period of redemption was also one year (Exh. 20). The fishpond was later redeemed and Naval reconveyed it to the vendorsa retroin a document dated October 5, 1916 (Exh. 20-a).The 1930 survey shown in the computation sheets of the Bureau of Lands reveals that the Calunuran fishpond has an area of 479,205 square meters and that it was claimed by Juan Salao and Ambrosia Salao, while the Pinanganacan fishpond (subsequently acquired by Juan and Ambrosia) has an area of 975,952 square meters (Exh. 22).Likewise, there is no controversy as to the fact that on May 27, 1911 Ambrosia Salao bought for four thousand pesos from the heirs of Engracio Santiago a parcel of swampland planted tobacawanand nipa with an area of 96 hectares, 57 ares and 73 centares located at Sitio Lewa, Barrio Pinanganacan, Lubao, Pampanga (Exh. 17-d).The record of Civil Case No. 136, General Land Registration Office Record No. 12144, Court of First Instance of Pampanga shows that Ambrosia Salao and Juan Salao filed an application for the registration of that land in their names on January 15, 1916. They alleged in their petition that "han adquirido dicho terreno porpartes igualesy por la compra a los herederos del finado, Don Engracio Santiago" (Exh. 17-a).At the hearing on October 26, 1916 before Judge Percy M. Moir, Ambrosia testified for the applicants. On that same day Judge Moir rendered a decision, stating,inter alia,that the heirs of Engracio Santiago had sold the land to Ambrosia Salao and Juan Salao. Judge Moir "ordena la adjudicacion y registro del terreno solicitado a nombre de Juan Salao, mayor de edad y de estado casado y de su esposa Diega Santiago y Ambrosia Salao, de estado soltera y mayor de edad,en participaciones iguales"(Exh. 17-e).On November 28, 1916 Judge Moir ordered the issuance of a decree for the said land. The decree was issued on February 21, 1917. On March 12, 1917 Original Certificate of Title No. 472 of the Registry of Deeds of Pampanga was issued in the names of Juan Salao and Ambrosia Salao.That Pinanganacan or Lewa fishpond later became Cadastral Lot No. 544 of the Hermosa cadastre (Exh. 23). It adjoins the Calunuran fishpond (See sketch, Exh. 1).Juan Y. Salao, Sr. died on November 3, 1931 at the age of eighty years (Exh. C). His nephew, Valentin Salao, died on February 9, 1933 at the age of sixty years according to the death certificate (Exh. A. However, if according to Exhibit 21, he was forty-eight years old in 1918, he would be sixty-three years old in 1933).The intestate estate of Valentin Salao was partitioned extrajudicially on December 28, 1934 between his two daughters, Benita Salao-Marcelo and Victorina Salao-Alcuriza (Exh. 32). His estate consisted of the two fishponds which he had inherited in 1918 from his grandmother, Valentina Ignacio.If it were true that he had a one-third interest in the Calunuran and Lewa fishponds with a total area of 145 hectares registered in 1911 and 1917 in the names of his aunt and uncle, Ambrosia Salao and Juan Y. Salao, Sr., respectively, it is strange that no mention of such interest was made in the extrajudicial partition of his estate in 1934.It is relevant to mention that on April 8, 1940 Ambrosia Salao donated to her grandniece, plaintiff Benita Salao, three lots located at Barrio Dampalit with a total area of 5,832 square meters (Exit. L). As donee Benita Salao signed the deed of donation.On that occasion she could have asked Ambrosia Salao to deliver to her and to the children of her sister, Victorina, the Calunuran fishpond if it were true that it was held in trust by Ambrosia as the share of Benita's father in the alleged joint venture.But she did not make any such demand. It was only after Ambrosia Salao's death that she thought of filing an action for the reconveyance of the Calunuran fishpond which was allegedly held in trust and which had become the sole property of Juan Salao y Santiago (Juani).On September 30, 1944 or during the Japanese occupation and about a year before Ambrosia Salao's death on September 14, 1945 due to senility (she was allegedly eighty-five years old when she died), she donated her one-halfproindivisoshare in the two fishponds in question to her nephew, Juan S. Salao, Jr. (Juani) At that time she was living with Juani's family. He was already the owner of the the other half of the said fishponds, having inherited it from his father, Juan Y. Salao, Sr. (Banli) The deed of denotion included other pieces of real property owned by Ambrosia. She reserved for herself the usufruct over the said properties during her lifetime (Exh. 2 or M).The said deed of donation was registered only on April 5, 1950 (page 39, Defendants' Record on Appeal).The lawyer of Benita Salao and the Children of Victorina Salao in a letter dated January 26, 1951 informed Juan S. Salao, Jr. that his clients had a one-third share in the two fishponds and that when Juani took possession thereof in 1945, he refused to give Benita and Victorina's children their one-third share of the net fruits which allegedly amounted to P200,000 (Exh. K).Juan S. Salao, Jr. in his answer dated February 6, 1951 categorically stated that Valentin Salao did not have any interest in the two fishponds and that the sole owners thereof his father Banli and his aunt Ambrosia, as shown in the Torrens titles issued in 1911 and 1917, and that he Juani was the donee of Ambrosia's one-half share (Exh. K-1).Benita Salao and her nephews and niece filed their original complaint against Juan S. Salao, Jr. on January 9, 1952 in the Court of First Instance of Bataan (Exh. 36). They amended their complaint on January 28, 1955. They asked for the annulment of the donation to Juan S. Salao, Jr. and for the reconveyance to them of the Calunuran fishpond as Valentin Salao's supposed one-third share in the 145 hectares of fishpond registered in the names of Juan Y. Salao, Sr. and Ambrosia Salao.Juan S. Salao, Jr. in his answer pleaded as a defense the indefeasibility of the Torrens title secured by his father and aunt. He also invoked the Statute of Frauds, prescription and laches. As counter-claims, he asked for moral damages amounting to P200,000, attorney's fees and litigation expenses of not less than P22,000 and reimbursement of the premiums which he has been paying on his bond for the lifting of the receivership Juan S. Salao, Jr. died in 1958 at the age of seventy-one. He was substituted by his widow, Mercedes Pascual and his six children and by the administrator of his estate.In the intestate proceedings for the settlement of his estate the two fishponds in question were adjudicated to his seven legal heirs in equal shares with the condition that the properties would remain under administration during the pendency of this case (page 181, Defendants' Record on Appeal).After trial the trial court in its decision consisting of one hundred ten printed pages dismissed the amended complaint and the counter-claim. In sixty-seven printed pages it made a laborious recital of the testimonies of plaintiffs' fourteen witnesses, Gregorio Marcelo, Norberto Crisostomo, Leonardo Mangali Fidel de la Cruz, Dionisio Manalili, Ambrosio Manalili, Policarpio Sapno, Elias Manies Basilio Atienza, Benita Salao, Emilio Cagui Damaso de la Pea, Arturo Alcuriza and Francisco Buensuceso, and the testimonies of defendants' six witnesses, Marcos Galicia, Juan Galicia, Tiburcio Lingad, Doctor Wenceslao Pascual, Ciriaco Ramirez and Pablo P. Salao. (Plaintiffs presented Regino Nicodemus as a fifteenth witness, a rebuttal witness).The trial court found that there was no community of property among Juan Y. Salao, Sr., Ambrosia Salao and Valentin Salao when the Calunuran and Pinanganacan (Lewa) lands were acquired; that a co-ownership over the real properties of Valentina Ignacio existed among her heirr after her death in 1914; that the co-ownership was administered by Ambrosia Salao and that it subsisted up to 1918 when her estate was partitioned among her three children and her grandson, Valentin Salao.The trial court surmised that the co-ownership which existed from 1914 to 1918 misled the plaintiffs and their witnesses and caused them to believe erroneously that there was a co-ownership in 1905 or thereabouts. The trial court speculated that if valentin had a hand in the conversion into fishponds of the Calunuran and Lewa lands, he must have done so on a salary or profit- sharing basis. It conjectured that Valentin's children and grandchildren were given by Ambrosia Salao a portion of the earnings of the fishponds as a reward for his services or because of Ambrosia's affection for her grandnieces.The trial court rationalized that Valentin's omission during his lifetime to assail the Torrens titles of Juan and Ambrosia signified that "he was not a co-owner" of the fishponds. It did not give credence to the testimonies of plaintiffs' witnesses because their memories could not be trusted and because no strong documentary evidence supported the declarations. Moreover, the parties involved in the alleged trust were already dead.It also held that the donation was validly executed and that even if it were void Juan S. Salao, Jr., the donee, would nevertheless be the sole legal heir of the donor, Ambrosia Salao, and would inherit the properties donated to him.Both parties appealed. The plaintiffs appealed because their action for reconveyance was dismissed. The defendants appealed because their counterclaim for damages was dismissed.The appeals, which deal with factual and legal issues, were made to the Court of Appeals. However, as the amounts involved exceed two hundred thousand pesos, the Court of Appeals elevated the case to this Court in its resolution of Octoter 3, 1966 (CA-G.R. No. 30014-R).Plaintiffs' appeal. An appellant's brief should contain "a subject index index of the matter in the brief witha digest of the argument and page references"to the contents of the brief (Sec. 16 [a], Rule 46, 1964 Rules of Court; Sec. 17, Rule 48, 1940 Rules of Court).The plaintiffs in their appellants' brief consisting of 302 pages did not comply with that requirement. Their statements of the case and the facts do not contain "page references to the record" as required in section 16[c] and [d] of Rule 46, formerly section 17, Rule 48 of the 1940 Rules of Court.Lawyers for appellants, when they prepare their briefs, would do well to read and re-read section 16 of Rule 46. If they comply strictly with the formal requirements prescribed in section 16, they might make a competent and luminous presentation of their clients' case and lighten the burden of the Court.What Justice Fisher said in 1918 is still true now: "The pressure of work upon this Court is so great that we cannot, in justice to other litigants, undertake to make an examination of the voluminous transcript of the testimony (1,553 pages in this case, twenty-one witnesses having testified), unless the attorneys who desire us to make such examination have themselves taken the trouble to read the record and brief it in accordance with our rules" (Palara vs. Baguisi 38 Phil. 177, 181). As noted in an old case, this Court decides hundreds of cases every year and in addition resolves in minute orders an exceptionally considerable number of petitions, motions and interlocutory matters (Alzua and Arnalot vs. Johnson, 21 Phil. 308, 395; SeeIn re Almacen,L-27654, February 18, 1970, 31 SCRA 562, 573).Plaintiffs' first assignment of error raised a procedural issue. In paragraphs 1 to 14 of their first cause of action they made certain averments to establish their theory that Valentin Salao had a one-third interest in the two fishponds which were registrered in the names of Juan Y. Salao, Sr. (Banli) and Ambrosia Salao.Juan S. Salao, Jr. (Juani) in his answer "specifically" denied each and all the allegations" in paragraphs I to 10 and 12 of the first cause of action with the qualification that Original certificates of Title Nos. 185 and 472 were issued "more than 37 years ago" in the names of Juan (Banli) and Ambrosia under the circumstances set forth in Juan S. Salao, Jr.'s "positive defenses" and "not under the circumstances stated in the in the amended complaint".The plaintiffs contend that the answer of Juan S. Salao, Jr. was in effect tin admission of the allegations in their first cause of action that there was a co-ownership among Ambrosia, Juan, AIejandra and Valentin, all surnamed Salao, regarding the Dampalit property as early as 1904 or 1905; that the common funds were invested the acquisition of the two fishponds; that the 47-hectare Calunuran fishpond was verbally adjudicated to Valentin Salao in the l919 partition and that there was a verbal stipulation to to register "said lands in the name only of Juan Y. Salao".That contention is unfounded. Under section 6, Rule 9 of the 1940 of Rules of Court the answer should "contain either a specific dinial a statement of matters in accordance of the cause or causes of action asserted in the complaint". Section 7 of the same rule requires the defendant to "deal specificaly with each material allegation of fact the truth of wihich he does not admit and, whenever practicable shall set forth the substance of the matters which he will rely upon to support his denial". "Material averments in the complaint, other than those as to the amount damage, shall be deemed admitted when specifically denied" (Sec. 8). "The defendant may set forth set forth by answer as many affirmative defenses as he may have. All grounds of defenses as would raise issues of fact not arising upon the preceding pleading must be specifically pleaded" (Sec. 9).What defendant Juan S. Salao, Jr. did in his answer was to set forth in his "positive defenses" the matters in avoidance of plaintiffs' first cause of action which which supported his denials of paragraphs 4 to 10 and 12 of the first cause of action. Obviously, he did so because he found it impracticable to state pierceneal his own version as to the acquisition of the two fishponds or to make a tedious and repetitious recital of the ultimate facts contradicting allegations of the first cause of action.We hold that in doing so he substantially complied with Rule 9 of the 1940 Rules of Court. It may be noted that under the present Rules of Court a "negative defense is the specific denial of t the material fact or facts alleged in the complaint essential to plaintiff's cause of causes of action". On the other hand, "an affirmative defense is an allegation of new matter which, while admitting the material allegations of the complaint, expressly or impliedly, would nevertheless prevent or bar recovery by the plaintiff." Affirmative defenses include all matters set up "by of confession and avoidance". (Sec. 5, Rule 6, Rules of Court).The case ofEl Hogar Filipino vs. Santos Investments,74 Phil. 79 and similar cases are distinguishable from the instant case. In theEl Hogarcase the defendant filed a laconic answer containing the statement that it denied "generally ans specifically each and every allegation contained in each and every paragraph of the complaint". It did not set forth in its answer any matters by way of confession and avoidance. It did not interpose any matters by way of confession and avoidance. It did not interpose any affirmative defenses.Under those circumstances, it was held that defendant's specific denial was really a general denial which was tantamount to an admission of the allegations of the complaint and which justified judgment on the pleadings. That is not the situation in this case.The other nine assignments of error of the plaintiffs may be reduced to the decisive issue of whether the Calunuran fishpond was held in trust for Valentin Salao by Juan Y. Salao, Sr. and Ambrosia Salao. That issue is tied up with the question of whether plaintiffs' action for reconveyance had already prescribed.The plaintiffs contend that their action is "to enforce a trust which defendant" Juan S. Salao, Jr. allegedly violated. The existence of a trust was not definitely alleged in plaintiffs' complaint. They mentioned trust for the first time on page 2 of their appelants' brief.To determine if the plaintiffs have a cause of action for the enforcement of a trust, it is necessary to maek some exegesis on the nature of trusts(fideicomosis).Trusts in Anglo-American jurisprudence were derived from thefideicommissaof the Roman law (Government of the Philippine Islands vs. Abadilla,46 Phil. 642, 646)."In its technical legal sense, a trust is defined as the right, enforceable solely in equity, to the beneficial enjoyment of property, the legal title to which is vested in another, but the word 'trust' is frequently employed to indicate duties, relations, and responsibilities which are not strictly technical trusts" (89 C.J.S. 712).A person who establishes a trust is called the trustor; one in whom confidence is reposed as regards property for the benefit of another person is known as the trustee; and the person for whose benefit the trust has been created is referred to as the beneficiary" (Art. 1440, Civil Code). There is a fiduciary relation between the trustee and thecestui que trustas regards certain property, real, personal, money or choses in action (Pacheco vs. Arro, 85 Phil. 505)."Trusts are either express or implied. Express trusts are created by the intention of the trustor or of the parties. Implied trusts come into being by operation of law" (Art. 1441, Civil Code). "No express trusts concerning an immovable or any interest therein may be proven by parol evidence. An implied trust may be proven by oral evidence" (Ibid,Arts. 1443 and 1457)."No particular words are required for the creation of an express trust, it being sufficient that a trust is clearly intended" (Ibid,Art. 1444; Tuason de Perez vs. Caluag, 96 Phil. 981; Julio vs. Dalandan, L-19012, October 30, 1967, 21 SCRA 543, 546). "Express trusts are those which are created by the direct and positive acts of the parties, by some writing or deed, or will, or by words either expressly or impliedly evincing an intention to create a trust" (89 C.J.S. 72)."EXORESS trusts are those which, without being expressed, are deducible from the nature of the transaction asmatters of intent,or which are superinduced on the transaction byoperation of law as matter of equity,independently of the particular intention of the parties" (89 C.J.S. 724). They are ordinarily subdivided into resulting and constructive trusts (89 C.J.S. 722)."A resulting trust. is broadly defined as a trust which is raised or created by the act or construction of law, but in its more restricted sense it is a trust raised byimplication of law and presumed to have been contemplated by the parties,the intention as to which is to be found in the nature of their transaction, but not expressed in the deed or instrument of conveyance (89 C.J.S. 725). Examples of resulting trusts are found in articles 1448 to 1455 of the Civil Code. (See Padilla vs. Court of Appeals, L-31569, September 28, 1973, 53 SCRA 168, 179; Martinez vs. Grao 42 Phil. 35).On the other hand, a constructive trust is -a trust "raised by construction of law, or arising by operation of law". In a more restricted sense and as contra-distinguished from a resulting trust, a constructive trust is "a trust not created by any words, either expressly or impliedly evincing a direct intension to create a trust, but bythe construction of equity in order to satisfy the demands of justice."It does not arise "by agreement or intention, but by operation of law." (89 C.J.S. 726-727).Thus, "if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes" (Art. 1456, Civil Code).Or "if a person obtains legal title to property by fraud or concealment, courts of equity will impress upon the title a so-called constructive trust in favor of the defrauded party". Such a constructive trust is not a trust in the technical sense. (Gayondato vs. Treasurer of the P. I., 49 Phil. 244).Not a scintilla of documentary evidence was presented by the plaintiffs to prove that there was an express trust over the Calunuran fishpond in favor of Valentin Salao. Purely parol evidence was offered by them to prove the alleged trust. Their claim that in the oral partition in 1919 of the two fishponds the Calunuran fishpond was assigned to Valentin Salao is legally untenable.It is legally indefensible because the terms of article 1443 of the Civil Code (already in force when the action herein was instituted) are peremptory and unmistakable: parol evidence cannot be used to prove an express trust concerning realty.Is plaintiffs' massive oral evidence sufficient to prove an implied trust, resulting or constructive, regarding the two fishponds?Plaintiffs' pleadings and evidence cannot be relied upon to prove an implied trust. The trial court's firm conclusion that there was no community of property during the lifetime of Valentina; Ignacio or before 1914 is substantiated by defendants' documentary evidence. The existence of the alleged co-ownership over the lands supposedly inherited from Manuel Salao in 1885 is the basis of plaintiffs' contention that the Calunuran fishpond was held in trust for Valentin Salao.But that co-ownership was not proven by any competent evidence. It is quite improbable because the alleged estate of Manuel Salao was likewise not satisfactorily proven. The plaintiffs alleged in their original complaint that there was a co-ownership overtwohectares of land left by Manuel Salao. In their amended complaint, they alleged that the co-ownership was oversevenhectares of fishponds located in Barrio Dampalit, Malabon, Rizal. In their brief they alleged that the fishponds, ricelands and saltbeds owned in common in Barrio Dampalit had an area oftwenty-eighthectares, of which sixteen hectares pertained to Valentina Ignacio and eleven hectares represented Manuel Salao's estate.They theorized that the eleven hectares "were, and necessarily, the nucleus, nay the very root, of the property now in litigation (page 6, plaintiffs-appellants' brief). But the eleven hectares were not proven by any trustworthy evidence. Benita Salao's testimony that in 1918 or 1919 Juan, Ambrosia, Alejandra and Valentin partitioned twenty-eight hectares of lands located in Barrio Dampalit is not credible. As noted by the defendants,Manuel Salao was not even mentioned in plaintiffs' complaints.The 1919 partition of Valentina Ignacio's estate covered aboutseventeenhectares of fishponds and ricelands (Exh. 21). If at the time that partition was made there were eleven hectares of land in Barrio Dampalit belonging to Manuel Salao, who died in 1885, those eleven hectares would have been partitioned in writing as in the case of the seventeen hectares belonging to Valentina Ignacio's estate.It is incredible that the forty-seven-hectare Calunuran fishpond would be adjudicated to Valentin Salao mere by by word of mouth. Incredible because for the partition of theseventeenhectares of land left by Valentina Ignacio an elaborate "Escritura de Particion" consisting of twenty-two pages had to be executed by the four Salao heirs. Surely, for the partition of one hundred forty-five hectares of fishponds among three of the same Salao heirs an oral adjudication would not have sufficed.The improbability of the alleged oral partition becomes more evident when it is borne in mind that the two fishponds were registered land and "the act of registration" is "the operative act" that conveys and affects the land (Sec. 50, Act No. 496). That means that any transaction affecting the registered land should be evidenced by a registerable deed. The fact that Valentin Salao and his successors-in-interest, the plaintiffs, never bothered for a period of nearly forty years to procure any documentary evidence to establish his supposed interest ox participation in the two fishponds is very suggestive of the absence of such interest.The matter may be viewed from another angle. As already stated, the deed of partition for Valentina Ignacio's estate wag notarized in 1919 (Exh. 21). The plaintiffs assert that the two fishponds were verbally partitioned also in 1919 and that the Calunuran fishpond was assigned to Valentin Salao as his share.Now in the partition of Valentina Ignacio's estate, Valentin was obligated to pay P3,355.25 to Ambrosia Salao. If, according to the plaintiffs, Ambrosia administered the two fishponds and was the custodian of its earnings, then it could have been easily stipulated in the deed partitioning Valentina Ignacio's estate that the amount due from Valentin would just be deducted by Ambrosia from his share of the earnings of the two fishponds. There was no such stipulation. Not a shred of documentary evidence shows Valentin's participation in the two fishponds.The plaintiffs utterly failed to measure up to the yardstick that a trust must be proven by clear, satisfactory and convincing evidence. It cannot rest on vague and uncertain evidence or on loose, equivocal or indefinite declarations (De Leon vs. Molo-Peckson, 116 Phil. 1267, 1273).Trust and trustee; establishment of trust by parol evidence; certainty of proof. Where a trust is to be established by oral proof, the testimony supporting it must be sufficiently strong to prove the right of the alleged beneficiary with as much certainty as if a document proving the trust were shown.A trust cannot be established, contrary to the recitals of a Torrens title, upon vague and inconclusive proof.(Syllabus, Suarez vs. Tirambulo, 59 Phil. 303).Trusts; evidence needed to establish trust on parol testimony. In order to establish a trust in real property by parol evidence, the proof should be as fully convincing as if the act giving rise to the trust obligation were proven by an authentic document. Such a trust cannot be established upon testimony consisting in large part of insecure surmises based on ancient hearsay. (Syllabus, Santa Juana vs. Del Rosario 50 Phil. 110).The foregoing rulings are good under article 1457 of the Civil Code which, as already noted, allows an implied trust to be proven by oral evidence. Trustworthy oral evidence is required to prove an implied trust because, oral evidence can be easily fabricated.On the other hand, a Torrens title is generally a conclusive of the ownership of the land referred to therein (Sec. 47, Act 496). A strong presumption exists. that Torrens titles were regularly issued and that they are valid. In order to maintain an action for reconveyance, proof as to the fiduciary relation of the parties must be clear and convincing (Yumul vs. Rivera and Dizon, 64 Phil. 13, 17-18).The real purpose of the Torrens system is, to quiet title to land. "Once a title is registered, the owner may rest secure, without the necessity of waiting in the portals of the court, or sitting in themirador de su casa,to avoid the possibility of losing his land" (Legarda and Prieto vs. Saleeby, 31 Phil. 590, 593).There was no resulting trust in this case because there never was any intention on the part of Juan Y. Salao, Sr., Ambrosia Salao and Valentin Salao to create any trust. There was no constructive trust because the registration of the two fishponds in the names of Juan and Ambrosia was not vitiated by fraud or mistake. This is not a case where to satisfy the demands of justice it is necessary to consider the Calunuran fishpond " being held in trust by the heirs of Juan Y. Salao, Sr. for the heirs of Valentin Salao.And even assuming that there was an implied trust, plaintiffs' action is clearly barred by prescription or laches (Ramos vs. Ramos, L-19872, December 3, 1974, 61 SCRA 284; Quiniano vs. Court of Appeals, L-23024, May 31, 1971, 39 SCRA 221; Varsity Hills, Inc. vs. Navarro, 9, February 29, 1972, 43 SCRA 503; Alzona vs. Capunitan and Reyes, 114 Phil. 377).Under Act No. 190, whose statute of limitation would apply if there were an implied trust in this case, the longest period of extinctive prescription was only ten year (Sec. 40; Diaz vs. Gorricho and Aguado, 103 Phil. 261, 266).The Calunuran fishpond was registered in 1911. The written extrajudicial demand for its reconveyance was made by the plaintiffs in 1951. Their action was filed in 1952 or after the lapse of more than forty years from the date of registration. The plaintiffs and their predecessor-in-interest, Valentin Salao, slept on their rights if they had any rights at all.Vigilanti prospiciunt juraor the law protects him who is watchful of his rights (92 C.J.S. 1011, citing Esguerra vs. Tecson, 21 Phil. 518, 521)."Undue delay in the enforcement of a right is strongly persuasive of a lack of merit in the claim, since it is human nature for a person to assert his rights most strongly when they are threatened or invaded". "Laches or unreasonable delay on the part of a plaintiff in seeking to enforce a right is not only persuasive of a want of merit but may, according to the circumstances, be destructive of the right itself." (Buenaventura vs. David, 37 Phil. 435, 440-441).Having reached the conclusion that the plaintiffs are not entitled to the reconveyance of the Calunuran fishpond, it is no longer n to Pass upon the validity of the donation made by Ambrosia Salao to Juan S. Salao, Jr. of her one-half share in the two fishponds The plaintiffs have no right and personality to assil that donation.Even if the donation were declared void, the plaintiffs would not have any successional rights to Ambrosia's share. The sole legal heir of Ambrosia was her nephew, Juan, Jr., her nearest relative within the third degree. Valentin Salao, if living in 1945 when Ambrosia died, would have been also her legal heir, together with his first cousin, Juan, Jr. (Juani). Benita Salao, the daughter of Valentin, could not represent him in the succession to the estate of Ambrosia since in the collateral line, representation takes place only in favor of the children of brothers or sisters whether they be of the full or half blood is (Art 972, Civil Code). The nephew excludes a grandniece like Benita Salao or great-gandnephews like the plaintiffs Alcuriza (Pavia vs. Iturralde 5 Phil. 176).The trial court did not err in dismissing plaintiffs' complaint.Defendants' appeal. The defendants dispute the lower court's finding that the plaintiffs filed their action in good faith. The defendants contend that they are entitled to damages because the plaintiffs acted maliciously or in bad faith in suing them. They ask for P25,000 attorneys fees and litigation expenses and, in addition, moral damages.We hold that defemdamts' appeal is not meritorious. The record shows that the plaintiffs presented fifteen witnesses during the protracted trial of this case which lasted from 1954 to 1959. They fought tenaciously. They obviously incurred considerable expenses in prosecuting their case. Although their causes of action turned out to be unfounded, yet the pertinacity and vigor with which they pressed their claim indicate their sincerity and good faith.There is the further consideration that the parties were descendants of common ancestors, the spouses Manuel Salao and Valentina Ignacio, and that plaintiffs' action was based on their honest supposition that the funds used in the acquisition of the lands in litigation were earnings of the properties allegedly inherited from Manuel Salao.Considering those circumstances, it cannot be concluded with certitude that plaintiffs' action was manifestly frivolous or was primarily intended to harass the defendants. An award for damages to the defendants does not appear to be just and proper.The worries and anxiety of a defendant in a litigation that was not maliciously instituted are not the moral damages contemplated in the law (Solis & Yarisantos vs. Salvador, L-17022, August 14, 1965, 14 SCRA 887; Ramos vs. Ramos,supra). The instant case is not among the cases mentioned in articles 2219 and 2220 of the Civil Code wherein moral damages may be recovered. Nor can it be regarded as analogous to any of the cases mentioned in those articles.The adverse result of an action does notper semake the act wrongful and subject the actor to the payment of moral damages. The law could not have meant to impose a penalty on the right to litigate; such right is so precious that moral damages may not be charged on those who may exercise it erroneously. (Barreto vs. Arevalo, 99 Phil. 771. 779).The defendants invoke article 2208 (4) (11) of the Civil Code which provides that attorney's fees may be recovered "in case of a clearly unfounded civil action or proceeding against the plaintiff" (defendant is a plaintiff in his counterclaim) or "in any other case where the court deems it just and equitable" that attorney's fees should he awarded.But once it is conceded that the plaintiffs acted in good faith in filing their action there would be no basis for adjudging them liable to the defendants for attorney's fees and litigation expenses (See Rizal Surety & Insurance Co., Inc. vs. Court of Appeals, L-23729, May 16, 1967, 20 SCRA 61).It is not sound public policy to set a premium on the right to litigate. An adverse decision does not ipso facto justify the award of attorney's fees to the winning party (Herrera vs. Luy Kim Guan, 110 Phil. 1020, 1028; Heirs of Justiva vs. Gustilo, 61 O. G. 6959).The trial court's judgment is affirmed. No pronouncement as to costs.SO ORDERED.G.R. No. L-17809December 29, 1962RESURRECCION DE LEON, ET AL.,plaintiffs-appellees,vs.EMILIANA MOLO-PECKSON, ET AL.,respondents-appellants.Cornelio R. Magsarili for plaintiffs-appellees.Sycip, Salazar, Luna and Associates for respondents-appellants.BAUTISTA ANGELO,J.:Resurreccion De Leon, et al. filed on November 13, 1958 before the Court of First Instance of Rizal a complaint seeking to compel Emiliana Molo-Peckson, et al. to convey to the former ten parcel of land located in Pasay City with an area of 1,749 sq. m. upon payment of P1.00 per parcel upon the plea that said lots were willed or donated in 1948 to the latter by their foster parents Mariano Molo y Legaspi and Juana Juan with the understanding that they should sell them to the plaintiffs under the terms above-stated.Defendants, in their answer, disclaimed any legal obligation on their part to sell the above properties to the plaintiffs for the nominal consideration of P1.00 per lot alleging that if they executed the document on which the complaint is predicated it was on the mistaken assumption that their foster parents had requested them that they executed on August 9, 1956 a document revoking said donation which was acknowledged before Notary Public Leoncio C. Jimenez.No testimonial evidence was presented by either party. Instead, both agreed to submit the case upon the presentation of their respective exhibits which were all admitted by the trial court.After trial on the merits, the court a quo rendered on September 21, 1960 a decision wherein it held that, under the facts established by the evidence, trust has been constituted by the late spouses Mariano Molo and Juana Juan over the ten parcels of land in question in favor plaintiffs as beneficiaries and, as a consequence concluded:Considering all the foregoing, the Court orders:1. The defendants, jointly and severally to free the said ten (10) parcels of land from the mortgage lien in favor of the Rehabilitation Finance Corporation (now Development Bank of the Philippines) and Claro Cortez, and thereafter to sign and execute in favor of the plaintiffs a deed of absolute sale of the said properties for and in consideration of TEN (P10.00) PESOS already deposited in Court after all conditions imposed in Exhibit A have been complied with;2. That in the event the defendants shall refuse to execute and perform the above, they are ordered, jointly and severally, to pay the plaintiffs the value of said ten (10) parcels of land in question, the amount to be assessed by the City of Pasay City as the fair market value of the same, upon orders of the Court to assess said value;3. The defendants jointly and severally to pay the plaintiffs' Attorney's fees in the amount of P3,000.00, as defendants acted in gross and evident bad faith in refusing to satisfy the plaintiffs' plainly valid, just and demandable claim, under Article 2208 sub-paragraph 5 of the New Civil Code;4. The defendants to render an accounting of the fruits of said ten (10) parcels of land from the time plaintiffs demanded the conveyance of said parcels of land on August 11, 1956 as per Exhibits B and C, in accordance with the provisions of Article 1164, New Civil Code which provides that the creditor has a right to the fruit of the thing from the time the obligation to deliver it arises; and5. The defendants to pay the costs.Defendants took the present appeal.On January 24, 1941, Mariano Molo y Legaspi died leaving a will wherein he bequeathed his entire estate to his wife, Juana Juan. This will was probated in the Court of First Instance of Pasay City, Rizal, which was affirmed by the Supreme Court on November 26, 1956 (G.R. No. L-8774). On May 11, 1948, Juana Juan in turn executed a will naming therein many devisees and legatees, one of whom is Guillermo San Rafael, mother of the plaintiffs and defendant Pilar Perez Nable. On June 7, 1948, however, Juana Juan executed a donationinter vivosin favor of Emiliana Molo-Peckson and Pilar Perez Nable of almost all of her entire property leaving only about P16,000.00 worth of property for the devisees mentioned in the will. Among the properties conveyed to the donees are the ten parcels of land subject of the present action. Juana Juan died on May 28, 1950.On December 5, 1950, Emiliana Molo-Peckson and Pilar Perez Nable executed a document which they called "MUTUAL AGREEMENT" the pertinent provisions of which are:That the above named parties hereby mutually agree by these presents . . . that the following lots should be sold at ONE (1) PESO each to the following persons and organization:x x x x x x x x xTO JUSTA DE LEON and RESURRECCION DE LEON, several parcels of land located at Calle Tolentino (South of Tenorio and Kapitan Magtibay), Pasay City, share and share alike or half and half of TEN (10) LOTS described in:Transfer Certificate of Title No. 28157 and allocated as follows:(a) To JUSTA DE LEON Five (5) Lots.(b) To RESURRECCION DE LEON, the remaining Five (5) Lots.That this agreement is made in conformity with the verbal wish of the late Don Mariano Molo y Legaspi and the late Dona Juana Francisco Juan y Molo. These obligations were repeatedly told to Emiliana Molo Peckson, before their death and that same should be fulfilled after their death.On August 9, 1956, however, the same defendants, assisted by their husbands, executed another document in which they revoked the so-called mutual agreement mentioned above, and another relating to the same subject matter, stating therein that the parties, "after matured and thorough study, realized that the above-mentioned public instruments . . . do not represent their true and correct interpretation of the verbal wishes of the late spouses Don Mariano Molo y Legaspi and Dona Juana Francisco Juan y Molo." But after the execution of this document, that is, on August 11, 1956, the beneficiary Resurreccion de Leon and Justa de Leon, thru their counsel demanded the conveyance to them of the ten parcels of land for the consideration of P1.00 per parcel as stated in the document of December 5, 1950. And having the defendants refused to do so, said beneficiaries consigned on July 8, 1957 the amount of P10.00 as the consideration of the ten parcels of land.lawphil.netIn this appeal, appellants assign the following errors:ITHE LOWER COURT ERRED IN HOLDING THAT THE SPOUSES, MARIANO MOLO AND JUANA JUAN, CONSTITUTED A TRUST OVER THE PROPERTIES IN QUESTION PETITION WITH PLAINTIFFS-APPELLEES AS BENEFICIARIES.IITHE LOWER COURT ERRED IN APPLYING ARTICLE 1440, 1441, 1449, 1453 AND 1457 OF THE NEW CIVIL CODE TO THE CASE AT BAR.IIITHE LOWER COURT ERRED IN HOLDING PLAINTIFFS-APPELLEES' EXHIBIT "A" TO BE A DECLARATION AGAINST INTEREST AND AN ADMISSION BY DEFENDANTS-APPELLANTS.IVTHE LOWER COURT ERRED IN HOLDING THAT DEFENDANTS-APPELLANTS HAD NO RIGHT TO REVOKE EXHIBIT "A".VTHE LOWER COURT ERRED, IN ORDERING APPELLANTS TO RENDER AN ACCOUNTING OF THE FRUIT OF THE PROPERTIES IN QUESTION.VITHE LOWER COURT ERRED IN ORDERING APPELLANTS TO FREE THE PROPERTIES FROM THE MORTGAGE LIENS IN FAVOR OF THE DEVELOPMENT BANK OF THE PHILIPPINES AND CLARO CORTEZ.VIITHE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES TO THE APPELLEES.VIIITHE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT.There is no merit in the claim that the document executed on December 5, 1950 does not represent the true and correct interpretation by appellants of the verbal wish of their foster parents relative to the conveyance for a nominal consideration to appellees of the ten parcels of land in question considering the circumstances obtaining in the present case. To begin with, this document was executed by appellants on December 5, 1950, or about two years and six months from the time they acquired title to the lands by virtue of the donationinter vivosexecuted in their favor by their foster mother Juana Juan and six months after the death of the donor. There is nobody who could cajole them to execute it, nor is there any force that could corce them to make the declaration therein expressed, except the constraining mandat of their conscience to comply with "the obligations repeatedly told to Emiliana Molo Peckson," one of appellants, before their death, epitomized inthe "verbal wish of the late Don Mariano Molo y Legaspi and the late Doa Juana Francisco Juan y Molo" to convey after their death said ten parcelsof land at P1.00 a parcel to appellees. In fact, the acknowledgement appended to the document they subscribed states that it was "their own free act andvoluntary deed."1awphi1.netIndeed, it is to be supposed that appellants understood and comprehended the legal import of said documents when they executed it more so when bothof them had studied in reputable centers of learning, one being a pharmacist and the other a member of the bar. Moreover, they have more than ample time the six months intervening betwen the death of the donor and the execution of the document to ponder not only wish of their predecessors-in-interest but also on the propriety of putting in writing the mandate they have received. It is, therefore, reasonable to presume that that document represents the real wish of appellants' predecessors-in-interest and that the only thing to be determinedis its real import and legal implications.That the document represents a recognition of pre-existing trust or a declaration of an express trust impressed on the ten parcels of land in question is evident. A declaration of trust has been defined as an act by which a person acknowledges that the property, title to which he holds, is held by him for the use of another (Griffith v. Maxfield, 51 S.W. 832, 66Ark. 513, 521). This is precisely the nature of the will of the donor: to convey the titles of the lands to appellants with the duty to hold them intrust for the appellees. Appellants oblingly complied with this duty byexecuting the document under consideration.True it is that to establish a trust the proof must be clear, satisfactory and convincing. It cannot rest on vague, uncertain evidence, or on a loose,equivocal or indefinite declaration (In reTuttle's Estate, 200 A. 921, 132 Pa. Super 356); but here the document in question clearly and unequivocallydeclares the existence of the trust even if the same was executed subsequent to the death of the trustor, Juana Juan, for it has been held that the right creating or declaring a trust need not be contemporaneous or inter-parties (Stephenson v. Stephenson, 171 S.W. 2d 265, 351 Mo. 8;In reCorbin's Trust Orhp., 57 York Leg. Rec. 201). It was even held that an express trust maybe declared by a writing made after the legal estate has been vested in the trustee (Kurtz v. Robinson, Tex. Civ. App. 256 S.W. 2d 1003). The contention, therefore, of appellants that the will and the donation executed by their predecessors-in-interest were absolute for it did not contain a hint that the lots in question will be held in trust by them does not merit weight because the fact that an express trust was created by a deed which was absolute on its face may be shown by a writing separate from the deed itself (Mugan v. Wheeler, 145 S.W. 462, 241 Mo. 376).The fact that the beneficiaries were not notified of the existence of the trust or that the latter have not been given an opportunity to accept it isof no importance, for it is not essential to the existence of a valid trustand to the right of the beneficiaries to enforce the same that they had knowledge thereof the time of its creation (Stoehr v. Miller, 296 F. 414).Neither is it necessary that the beneficiary should consent to the creation of the trust (Wockwire-Spencer Steel Corporation v. United Spring Mfg. Co.,142 N.E. 758, 247 Mass. 565). In fact it has been held that in case of a voluntary trust the assent of the beneficiary is not necessary to render itvalid because as a general rule acceptance by the beneficiary is presumed (Article 1446, new Civil Code; Cristobal v. Gomez, 50 Phil. 810).It is true, as appellants contend, that the alleged declaration of trust was revoked, and having been revoked it cannot be accepted, but the attempted revocation did not have any legal effect. The rule is that in the absence of any reservation of the power to revoke a voluntary trust is irrevocable without the consent of the beneficiary (Allen v. Safe Deposit and Trust Co.of Baltimore, 7 A. 2d 180, 177 Md. 26). It cannot be revoked by the creatoralone, nor by the trustee (Fricke v. Weber, C.C.A. Ohio, 145 F. 2d 737;Hughes v. C.I.R., C.C.A. 9, 104 F. 2d 144; Ewing v. Shannahan, 20 S.W. 1065,113 Mo. 188). Here, there is no such reservation.Appellants contend that the lower court erred in applying the provisions of the new Civil Code on trust. This is correct. The express trust was constituted during the lifetime of the predecessor-in-interest of appellants,that is, before the effectivity of the new Civil Code, although the instrumentrecognizing and declaring such trust was executed on December 5, 1950, afterthe effectivity of said Code. The Civil Code of 1889 and previous laws andauthorities on the matter, therefore, should govern the herein trust under the provisions of Article 2253 of the new Civil code.But the Civil Code of 1889 contains no specific provisions on trust as doesthe new Civil Code. Neither does the Code of Civil Procedure of 1901 for thesame merely provides for the proceeding to be followed relative to trustsand trustees (Chapter XVIII). This silence, however, does not mean that thejuridical institution of trust was then unknown in this jurisdiction, for theprinciples relied upon by the Supreme Court before the effectivity of thenew Civil Code were those embodied in Anglo-American jurisprudence as derivedfrom the Roman and Civil Law principles (Government v. Abadilla, 46 Phil. 42).And these are the same principles on which we predicate our ruling heretoforestated and on which we now rely for the validity of trust in question.The trial court ordered appellants to render an accounting of the fruits of the properties in question even if appellees did not expressly ask for it intheir prayer for relief. We, however, believe that this is covered by the general prayer "for such other relief just and equitable under the premises."What is important is to know from what what date the accounting should bemade. The trial court ordered that the accounting be made from the time appellees demanded the conveyance of the ten parcels of land on August 11, 1956, in accordance with Article 1164 of the new Civil Code which provides that the creditor has a right to the fruit of the thing from thetime the obligation to deliver it arises. But this cannot be done without first submitting proof that the conditions stated in the mutual agreement hadbeen complied with. And this only happened when the decision of the Supreme Court in G.R. No. L-8774 became final and executory. The ruling of the trialcourt in this respect should therefore be modified in the sense that the accounting should be made from the date of the finality of the said decision.We find no error in the directive of the trial court that appellants shouldfree the lands in question from the encumbrance that was created thereon by them in favor of the Development Bank of the Philippines and one Claro cortez, for as trustees it is their duty to deliver the properties to thecestui que trustfree from all liens and encumbrances.To recapitulate, we hold: (1) that the document executed on December 5, 1950 creates an express trust in favor of appellees; (2) that appellants had no right to revoke it without the consent of thecestui que trust; (3) that appellants must render an accounting of the fruits of the lands from the datethe judgement rendered in G.R. No. L-8774 became final and executory; and (4)that appellants should free said lands from all liens and encumbrances.WHEREFORE, with the modification as above indicated with regard to accounting,we hereby affirm the decision appealed from, without pronouncement as to costs.G.R. No. L-21334. December 10, 1924. ]

THE GOVERNMENT OF THE PHILIPPINE ISLANDS,Petitioner, v. ANASTACIA ABADILLA ET AL., claimants. THE MUNICIPALITY OF TAYABAS ET AL., claimants-appellees, MARIA PALAD ET AL., claimants-appellants.

Domingo Lopez, Ramon Diokno and Gabriel N. Trinidad forAppellants.

Attorney-General Villa-Real for the municipality as appellee.

No appearance for the other appellees.

SYLLABUS1. WILLS; CONSTRUCTION. Testamentary dispositions must be liberally construed so s to give effect to the intention of the testator as revealed by the will itself.

2. ID.; RULE AGAINST PERPETUITIES. Where the will does not prohibit the alienation of land devised in trust, there is no violation of any rule against perpetuities.

3. MUNICIPAL CORPORATIONS; "AYUNTAMIENTO." An ayuntamiento corresponds to what, in English, is termed a municipal corporation and the ordinary municipal government in these Islands falls short of being such a corporation.

4. PROVINCIAL GOVERNOR; PROVINCIAL CIVIL GOVERNOR DURING SPANISH REGIME. Though the functions and powers of the offices of provincial civil governor during the Spanish regime and of provincial governor of the present regime differ in detail, the latter must be regarded as the successor of the former.

5. ID.; NOT A PUBLIC ESTABLISHMENT; MAY RECEIVE A DEVISE IN TRUST WITHOUT PREVIOUS APPROVAL. A provincial governor cannot be regarded as a public establishment within the meaning of article 748 of the Civil Code and may therefore accept and receive a testamentary devise in trust without the previous approval of the central government.

6. TRUSTS, PRIVATE AND CHARITABLE; "CESTUI QUE TRUST" NOT "IN ESSE." In regard to private trusts, it is not always necessary that the cestui que trust should be named, or even be in esse at the time the trust is created in his favor and this is especially so in regard to charitable trusts.

7. REAL PROPERTY; TITLE TO LAND DEVISED IN TRUST; REVERSION. Under an ordinary devise of land in trust, the trustee holds the legal title and the cestui que trust the beneficial title and the natural heirs of the testator who are neither trustees nor cestui que trust have no remaining interest in the land devised except the right to the reversion in the event the devise should fail, or the trust for other reasons terminate.

8. ID.; ID.; STATUTE OF LIMITATIONS AS BETWEEN TRUSTEE AND "CESTUI QUE TRUST" ; AS BETWEEN TRUST AND THIRD PARTY; PRESCRIPTION. Though the statute of limitations does not run between trustee and cestui que trust as long as the trust relations subsist, it does run between the trust and third persons, and a third person who holds actual, open, public, and continuous possession of land for over ten years, adversely to the trust, acquires title to the land by prescription as against such trust.

D E C I S I O N

OSTRAND,J.:

This is an appeal from a judgment in cadastral land registration case No. 3 of the Court of First Instance of Tayabas (G.L.R.O. Record No. 213) in which case lots Nos. 3464, 3469, and 3470 are claimed by the municipality of Tayabas and the governor of the province on one side, and by Maria, Eufemio, Eugenia Felix, Caridad, Segunda, and Emilia Palad on the other. Lot No. 3470 is also claimed by Dorotea Lopez. The court below ordered the registration of all three lots in the name of the governor of the Province of Tayabas in trust for a secondary school to be established in the municipality of Tayabas. The claimants Palad and Dorotea Lopez appealed.

It appears from the evidence that the lands in question were originally owned by one Luis Palad, a school teacher, who obtained title to the land by composicion gratuita in 1894. On January 25, 1892, Palad executed a holographic will partly in Spanish and partly in Tagalog. Palad died in December 3, 1896, without descendants, but leaving a widow, the appellant Dorotea Lopez, to whom he had been married since October 4, 1885. On July 27, 1897, the Court of First Instance of Tayabas ordered the protocolization of the will over the opposition of Leopoldo and Policarpio Palad, collateral heirs of the deceased and of whom the appellants Palad are descendants.

The will contained a clause in Tagalog which, translated into English, reads:jgc:chanrobles.com.ph

"That the cocoanut land in Colongcolong, which I have put under cultivation, be used by my wife after my death during her life or until she marries, which property is referred to in the inventory under No. 5 but from this cocoanut land shall be taken what is to be lent to the persons who are to plant cocoanut trees and that which is to be paid to them as their share of the crop if any should remain; and that she try to earn with the product of the cocoanut trees of which those bearing fruit are annually increasing; and if the times aforementioned should arrive, I prepare and donate it to a secondary college to be erected in the capital of Tayabas; so this will be delivered by my wife and the executors to the Ayuntamiento of this town, should there by any, and if not, to the civil governor of this province in order to cause the manager thereof to comply with my wishes for the good of many and the welfare of the town."cralaw virtua1aw library

After the death of Luis Palad the widow Dorotea Lopez remained in possession of the land and in the year 1900 married one Calixto Dolendo. On April 20, 1903, the aforesaid collateral heirs of Luis Palad brought an action against the widow for the partition of the lands here in question on the ground that she, by reason of her second marriage, had lost the right to their exclusive use and possession. In the same action the municipality of Tayabas intervened claiming the land under the clause of the Palad will above quoted. During the pendency of the action and agreement was arrived at by the parties under which the land which now constitutes lots Nos. 3464 and 3469 were turned over to the municipality as its share of the inheritance under the will, and the remaining portion of the land in controversy and which now forms lot No. 3470 was left in the possession of Dorotea Lopez. On the strength of the agreement the action was dismissed on November 9, 1904, upon motion by the counsel for the municipality and concurred in by all the parties, reserving to the collateral heirs the right to bring another action. The municipality of Tayabas has been in possession of said lots Nos. 3464 and 3469 ever since and Dorotea Lopez has likewise held uninterrupted possession of lot No. 3470.

In regard to lots Nos. 3464 and 3469, claimed by the appellants Palad and the appellees, the case presents several problems not directly covered by statutory provisions or by Spanish or local precedents and, for the solutions of which, we must resort to the underlying principles of the law on the subject. As it is doubtful whether the possession of the municipality of Tayabas can be considered adverse within the meaning of section 41 of the Code of Civil Procedure, the case as to these lots turns upon the construction and validity of the clause quoted from the will of Luis Palad, rather than upon the question of prescription of title.

The clause is very unskillfully drawn; its language is ungrammatical and at first blush seems somewhat obscure, but on closer examination it sufficiently reveals the purpose of the testator. And if its provisions are not in contravention of some established rule of law or public policy, they must be respected and given effect. It may be observed that the question as to the sufficiency of the form of the will must be regarded as settled by the protocolization proceedings had in the year 1897.

It is a well-know rule that testamentary dispositions must be liberally construed so as to give effect to the intention of the testators revealed by the will itself. Applying this rule of construction it seems evident that by the clause in question the testator proposed to create a trust for the benefit of a secondary school to be established in the town of Tayabas, naming as trustee the ayuntamiento of the town or if there be no ayuntamiento, then the civil governor of the Province of Tayabas.

As the law of trusts has been much more frequently applied in England and in the United States that it has in Spain, we may draw freely upon American precedents in determining the effect of the testamentary trust here under consideration, especially so as the trusts known to the American and English equity jurisprudence are derived from the fidei commissa of the Roman Law and are based entirely upon Civil Law principles.

In order that a trust may become effective there must, of course, be a trustee and a cestui que trust, and counsel for the appellants Palad argues that we here have neither; that there is no ayuntamiento, no Gobernador Civil of the province, and no secondary school in the town of Tayabas.

An ayuntamiento corresponds and it may be conceded that the ordinary municipal corporation and it may be conceded that the ordinary municipal government in these Islands falls short of being such a corporation. But we have provincial governors who like their predecessors, the civil governors, are the chief executives of their respective provinces. It is true that in a few details the functions and powers of the two offices may vary somewhat, but it cannot be successfully disputed that one office is the legal successor of the other. It might as well be contended that when under the present regime the title of the chief executive of the Philippines was changed from Civil Governor to that of Governor-General, the latter was not the legal successor of the former. There can therefore be but very little doubt that the governor of the Province of Tayabas, as the successor of the civil governor of the province under the Spanish regime, may act as trustee in the present case.

In the regard to private trusts it is not always necessary that the cestui que trust should be named, or even be in esse at the time the trust is created in his favor. (Flint on Trusts and Trustees, section 25; citing Frazier v. Frazier, 2 Hill Ch., 305; Ashurst v. Given, 5 Watts & S., 329; Carson v. Carson, 1 Wins. [N.C. ], 24.) Thus a devise to a father in trust for accumulation for his children lawfully begotten at the time of his death has been held to be good although the father had no children at the time of the vesting of the funds in him as trustee. In charitable trusts such as the one here under discussion, the rule is still further relaxed. (Perry on Trusts, 5th ed., section 66.)

This principle is in harmony with article 788 of the Civil Code which read as follows:jgc:chanrobles.com.ph

"Any disposition which imposes upon an heirs the obligation of periodically investing specified sums in charitable works, such as dowries for poor maidens or scholarships for students, or in favor of the poor, or any charitable or public educational institution, shall be valid under the following conditions:jgc:chanrobles.com.ph

"If the charge is imposed on real property and is temporary, the heir or heirs may dispose of the encumbered estate, but the lien shall continue until the record thereof is canceled.

"If the charge is perpetual, the heir may capitalize it and invest the capital at interest, fully secured by first mortgage.

"The capitalization and investment of the principal shall be made with the intervention of the civil governor of the province after hearing the opinion of the prosecuting officer.

"In any case, if the testator should not have laid down any rules for the management and application of the charitable legacy, it shall be done by the executive authorities upon whom this duty devolves by law."cralaw virtua1aw library

It is true that minor distinctions may possibly be drawn between the case before us and that presupposed in the articles quoted, but the general principle in the same in both cases. Here the trustee, who holds the legal title, as distinguished from the beneficial title resting in the cestui que trust, must be considered the heir. The devise under consideration does not in terms require periodical investments of specified sums, but it is difficult to see how this can affect the general principle involved, and unless the devise contravenes some other provision of the Code it must be upheld.

We have been unable to find any such provision. There is no violation of any rule against perpetuities: the devise does not prohibit the alienation of the land devised. It does not violate article 670 of the Code: the making of the will and the continuance or quantity of the estate of the heir are not left in the discretion of a third party. the devisee is not uncertain and the devise is therefore not repugnant to article 750 of the Civil Code. the provincial governor can hardly be regarded as a public establishment within the meaning of article 748 and may therefore receive the inheritance without the previous approval of the Government.

But counsel argues that assuming all this to be true the collateral heirs of the deceased would nevertheless be entitled to the income of the land until the cestui que trust is actually in esse. We do not think so. If the trustee holds the legal title and the devise is valid, the natural heirs of the deceased have no remaining interest in the land except their right to the reversion in the event which has not as yet taken place. From a reading of the testamentary clause under discussion it seems quite evident that the intention of the testator was to have the income of the property accumulate for the benefit of the proposed school until the same should be established.

From what has been said it follows that the judgment appealed from must be affirmed in regard to lots Nos. 3464 and 3469.

As to lot No. 3470 little need be said. It may be noted that though the Statute of Limitations dies not run as between trustee and cestui que trust as long as the trust relations subsist, it may run as between the trust and third persons. Contending that the Colongcolong land was community property of her marriage with Luis Palad and that lot No. 3470 represented her share thereof, Dorotea Lopez has held possession of said lot, adverse to all other claimants, since the year 1904 and has now acquired title by prescription.

The judgment appealed from is affirmed in regard to lots Nos. 3464 and 3469 and is reversed as to lot No. 3470, and it is ordered that said lot No. 3470, be registered in the name of the claimant Dorotea Lopez. No costs will be allowed. So ordered.

G.R. No. L-27014 October 5, 1927PAULINA CRISTOBAL, ET AL.,plaintiffs-appellees,vs.MARCELINO GOMEZ,defendant-appellant.M. H. de Joya and Jose Batungabacal for appellant.Ambrosio Santos for appellees.STREET,J.:This action was instituted in the Court of First Instance of the Province of Cavite by Paulina Cristobal, Luis Gomez, Josefa Gomez, Paciencia Gomez and Jose Gomez, for the purpose of recovering from Marcelino Gomez two parcels of land located in thesitioof Jabay, municipality of Bacoor, Province of Cavite, and lot located in the town of Bacoor, Cavite, all more particularly described in the second paragraph of the complaint, and for the purpose of compelling the defendant to pay to the plaintiffs the income received by him from said property since 1918. To the complaint the defendant answered with a general denial and two special defenses not necessary to be here recounted other than to indicate that he claimed to be owner in his own right of all of the property which is the subject of the action. Upon hearing the cause the trial court found that the property in question belongs to the plaintiffs, as coowners, and he therefore ordered the defendant to surrender the property to them and execute an appropriate deed of transfer as well as to pay the costs of the proceeding. From this judgment the defendant appealed.The property with which this action is concerned formerly belonged to Epifanio Gomez, deceased husband of the plaintiff Paulina Cristobal an father of the four Gomez children who joined with their mother Paulina in the complaint. On December 13, 1891, Epifanio Gomez sold this property under contract of sale withpacto de retroto Luis R. Yangco, redeemable in five years for the sum of P2,500 the vendor remaining in possession in the character of lessee. The period expressed in this agreement passed of lessee. The period expressed in this agreement passed without redemption, with the result that the property consolidated in Yangco, who, nevertheless, many years later conceded to the vendor the privilege of repurchasing. Gomez was without means to effect the repurchase of the property himself, and he therefore found it necessary to apply to a kinsman, Bibiano Baas, for assistance. Baas hesitated to lend Gomez the money upon his own sole credit; but told him that he would let him have the money if his brother Marcelino Gomez and his sister Telesfora Gomez would make themselves responsible for the loan. Epifanio therefor consulted with his brother and sister and they agreed to assist him in getting back his property. Accordingly, in the latter part of July, 1907, Bibiano Baas was called in consultation, at the home of Telesfora Gomez in Manila, with Epifanio Gomez and Marcelino Gomez. These four being present upon that occasion, an agreement was reached, which was, in substance, that Bibiano Baas, should advance the sum of P7,000, upon the personal credit of Marcelino and Telesfora Gomez, and that this money should be used to repurchase the property in the name of Telesfora Gomez and Marcelino Gomez, who should hold and administer the property until the capital advanced by Baas should be paid off, after which the property would be returned to Epifanio Gomez. This agreement was carried into effect by the execution of the Exhibits A and D of the plaintiffs, and though executed two days apart, these documents, as the trial court found, really constitute parts of one transaction. By the Exhibit A, executed on August 12, 1907, Marcelino Gomez and Telesfora Gomez created a "private partnership in participation" for the purpose of redeeming the property which their brother Epifanio had sold to Yangco. It was therein agreed that the capital of this partnership should consist of P7,000, of which Marcelino Gomez was to supply the amount of P1,500, and Telesfora Gomez the sum of P5,550. It was further agreed that all the property to redeemed should be placed in the name of the two namely, Marcelino Gomez and Telesfora Gomez, and that Marcelino Gomez should be its manager. Among the provisions in this agreement of major importance to the present decision, we find the following:(h) That all the income, rent, and produce of the aforesaid property of Epifanio Gomez shall be applied exclusively to the amortization of the capital employed by the two parties, that is to say, Don Marcelino Gomez and Doa Telesfora Gomez, with its corresponding interest and other incidental expenses.(i) As soon as the capital employed, with its interest and other incidental expenses, shall have been covered, said properties shall be returned to our brother Epifanio Gomez or to his legitimate children, with the direct intervention, however, of both parties, namely, Don Marcelino Gomez and Doa Telesfora Gomez, or one of them.(j) In order that the property of Epifanio Gomez may be returned, it is made essential that he shall manifest good behavior in the opinion of Don Marcelino Gomez and Doa Telesfora Gomez jointly.By the Exhibit D, executed on July 10, 1907, Luis Yangco conveyed to Marcelino Gomez and Telesfora Gomez the three pieces of property which he had obtained from Epifanio Gomez. Though this conveyance recited a consideration of 5,000, the amount really paid to Yangco upon this occasion was P6,700, consisting of the sum of P5,000 which was needed to redeem the property from Yangco, the further sum of P1,500 necessary to pay a loan which Epifanio Gomez had obtained from Gregoria Yangco, sister of Luis R. Yangco, and finally the sum of P200 which Yangco exacted as a present for his manager. The payment of these sums left P300 of the capital which Baas had advanced, and this balance was left with Marcelino Gomez to pay the expenses of documentation and to make certain needed repairs upon the property.A little more than a year after the transaction above-mentioned had been consummate, Epifanio Gomez died, leaving a widow, Paulina Cristobal, and the four children who are coplaintiffs with their mother in this action. Marcelino Gomez meanwhile entered into possession of the property, a possession which he subsequently maintained until his death, which occurred after this action had been tried in the court below. During this period of about twenty years Marcelino Gomez improved the larger parcel by extending the salt beds constructed upon it and by converting them from the Filipino form to the Chinese style. During the same period the three parcels of property quintupled in value, being now worth about P50,000, according to the estimate made by Marcelino Gomez himself.Less than a year after the death of Epifanio Gomez, his sister Telesfora became desirous of freeing herself from the responsibility which she had assumed to Bibianio Baas. Accordingly, on September 10, 1909, with the consent of Baas, the document Exhibit E was prepared and executed by Telesfora and Marcelino Gomez. By this instrument Telesfora conveyed to Marcelino her interest and share in the three properties previously redeemed from Yangco. The conveyance recites a consideration of the sum of P6,096, paid in the act. Nevertheless, no money passed, and the real consideration of the conveyance, as admitted by Marcelino Gomez himself, was that Marcelino should assume the obligation which Telesfora had contracted with Baas by reason of the loan of P7,000 made the latter upon the occasion of the redemption of the property from Yangco. The amount of this obligation was estimated at P6,096, and the consideration mentioned in the Exhibit E was therefore fixed in this amount. At the time that Exhibit E was executed the same parties, Marcelino Gomez and Telesfora Gomez, executed the document Exhibit 13 of the defendant, whereby they declared dissolved the partnership that had been created by the Exhibit A; and Telesfora Gomez again declared that she conveyed to Marcelino Gomez the three parcels in questions for the same consideration recited in the Exhibit E.As long as both Telesfora and Marcelino Gomez had been personally answerable to Baas for the loan of P7,000, he had been content to look to their personal responsibility for reimbursement; but not that the loan was being novated, with Marcelino as the sole debtor, Baas required him to execute a contract of sale for the three parcels, withpacto de retro, for the purpose of securing the indebtedness (Exhibit 14 of the defendant). This instrument was executed on September 10, 1909, contemporaneously with the execution of the documents by which Telesfora conveyed her interest in the property to Marcelino and by which the partnership was declared dissolved. In the instrument Exhibit 14 it is declared that Marcelino Gomez sells the property to Baas for the sum of P8,500, withpacto de retro, redeemable within the period of five years, extendible for whatever time Baas may consider convenient. At the same time, and by the same instrument, Baas leased the property to the vendor Gomez for the period fixed for repurchase at a semiannual rental of P510, taxes to be paid by the lessee. The period of repurchase fixed in this contract passed without redemption having been effected, but by an instrument dated June 26, 1915, Baas conceded to Gomez the right to repurchase, without any definite limit of time, conditioned upon the payment of the rent. Finally, on April 1, 1918, Marcelino Gomez paid to Baas the sum of P7,575.92 in full satisfaction of the entire claim and received from Baas a reconveyance of the three parcels, thus closing the documentary history of the property so far as concerns this litigation. Reflection upon the foregoing transaction leaves no room for doubt as to the fact that Baas held the property under the contract of sale withpacto de retro(Exhibit 14) as a mere security for his loan. This inference is borne out by the fact that partial payments on the capital had been accepted by him and that he voluntarily extended the period of redemption indefinitely after the property had nominally consolidated.The defendant Gomez says that the money used by him to redeem the property in the end was money of his own which he had obtained from the sale of lithographic plant. Assuming that this is true, it must nevertheless be remembered that the properties in question, especially the salt beds, were productive of considerable income; and Gomez admitted at the trial that he had obtained enough from the property to reimburse him for all outlays. It is therefore evident that the Baas loan has been fully liquidated from the income of the property, or the equivalent, and that the purpose of the original trust had been fully accomplished before this action was brought.The proof shows that Epifanio Gomez was in financial straits from the time of the Philippine revolution until his death; and in the early years of the present century he had from time to time informally hypothecated several of these salt beds to different creditors to secure petty loans, and this notwithstanding the fact that the property had previously been sold under contract of sale withpacto de retroto Luis R. Yangco. The fact that these loans had been made was known to Marcelino and Telesfora Gomez when they entered into partnership arrangement to get back the property from Yangco. Marcelino Gomez, as a manager, was therefore confronted with the necessity of paying off these small debts, with the result that he finally paid out upon the property a total of around P10,000, including of course the debt to Baas of P7,000. For these and all other expenses incident to the property he has, upon his own statement, been fully reimbursed.1awph!l.netThe facts sketched above exhibit the dominant features of the case, and reflection upon their import conducts us to the conclusion that the trial court committed no error in holding that the defendant Marcelino Gomez must surrender the property involved in this lawsuit; and he being now dead, the same obligation devolves on his heirs. The so-called partnership agreement (Exhibit A) between Marcelino Gomez and his sister created a trust for the express purpose of rescuing the property of Epifanio Gomez; and now that the purpose has been accomplished, the property should be returned to his legitimate children, as provided in paragraph (i) of the agreement. This bilateral contract was fully binding on both the contracting parties; and the trial court did not err in declaring that, under the second trial paragraph of article 1257 of the Civil Code, the successors of Epifanio Gomez are entitled to demand fulfillment of the trust. InMartinez vs. Grao(42 Phil., 35), we held that a person who, before consolidation of property in the purchaser under a contract of sale withpacto de retro, agrees with the vendors to buy the property and administer it till all debts constituting an encumbrance thereon shall be paid, after which the property shall be turned back to the original owner, is bound by such agreement; and upon buying in the property under these circumstances such person becomes in effect a trustee and is bound to administer the property in this character. The same rule is applicable in the case before us.But it is claimed for the applicant that the trust agreement (Exhibit A) was kept secret from Epifanio Gomez and that, having no knowledge of it, he could not have accepted it before the stipulation was revoked. This contention is contradicted in act by the testimony of Bibiano Baas, who says that Epifanio Gomez was present when the arrangement for the repurchase of the property from Yangco was discussed and that he assented thereto. Moreover, Baas states that after the agreement had been executed, he told Epifanio Gomez in the presence of his brother and sister that he should be well pleased as the object he had in view had been accomplished, meaning, that the property was recorded. But even supposing that Epifanio Gomez may never have seen the Exhibit A, we have no doubt that he understood the nature of the arrangement and his assent thereto was a sufficient acceptance. This being true, it was not competent for the parties to the trust agreement thereafter to dissolve the partnership and destroy the beneficial right of Epifanio Gomez in the property. The effect of Exhibits E and 13 was merely to eliminate Telesfora Gomez from responsibility in the performance of the trust and to clothe Marcelino Gomez alone with the obligations that had been created by Exhibit A.Much energy has been expended by the attorneys for the appellant in attempting to demonstrate that, if Epifanio Gomez at any time had any right in the property by virtue of the Exhibit A, such right could only be derived from the aspect of Exhibit A as a donation, and that, inasmuch as the donation was never accepted by Epifanio Gomez in a public document, his supposed interest therein is unenforceable. But this, in our opinion, is not a tenable hypothesis. The partnership agreement should not be viewed in the light of an intended donation, but as an express trust.Much stress is placed in the appellant's brief upon paragraph (j) of the partnership agreement which, it is claimed, makes it a condition precedent to the return of the property to Epifanio Gomez that he should Exhibit good behavior in the opinion of Marcelino and Telesfora Gomez; and it is claimed that Epifanio Gomez violated this condition by two kinds of misbehavior before his death, namely, first, by selling different salt lots to various persons, and secondly, by attending cockfights, an activity distasteful to his brother and sister. This feature of the case if fully discussed and the contention of the appellant refuted in the appealed decision. But a few words may be here added upon this aspect of the case. The trust agreement provides that after the capital employed and other expenses shall have been covered, the property shall be returned to Epifanio Gomez or his legitimate children. This contemplated the action to be taken when the debt should be fully liquidated, something that did not occur in this case until 1918. But Epifanio Gomez died in 1908. It is evident that misbehavior on the part of Epifanio Gomez during the year or more that he lived after the trust agreement was made could not be attributed as a ground of forfeiture to his legitimate children ten years later, especially as no step had ever been taken in the life of Epifanio Gomez to defeat his rights under the trust on account of his alleged misbehavior.Again, it is contended for the appellant that inasmuch as the property consolidated in Baas in the year 1915 under the contract of sale withpacto de retroto him, the subsequent repurchase of the property by Marcelino Gomez in 1918 vested an indefeasible title in the latter free from the original trust. But it is obvious that the purchase effected in 1918 was really a repurchase, consequent upon the extension of the time of redemption by Baas, and Gomez must be considered to be holding in the same right as before, that is, subject to the trust in favor of Epifanio Gomez.Lastly, it is urged that Gomez has the benefit of prescription in his favor, having been in possession more than ten years under the deed by which he acquired the sole right from his sister in 1909. This contention would be valid if the defendant had really been holding adversely under a claim of title exclusive of any other right and adverse to all other claimants; but, as we have already demonstrated, he was merely a trustee in possession under a continuing and subsisting trust. Prescription is not effective in favor of such a holder (Code of Civil Procedure, sec. 38). Moreover, even supposing that the statute of limitations might have begun to run in the defendant's favor when he recovered the property from Baas in 1918, the ten years allowed by law had not been completed when this action was instituted; and in this connection the minority of one or more of the plaintiffs during this period may be disregarded.A point unconnected with the other issues in the case is raised by the fourth assignment of error in the appellants brief. This has reference to the title to parcel C, the lot located in Bacoor. There can be no doubt that the ownership of this piece of property was originally vested in Epifanio Gomez by virtue of a composition title from the Government; and said title has never passed from him except by virtue of the contract of sale of 1891 in favor of Luis R. Yangco. Nevertheless, the defendant has submitted in evidence a notarial document emitted on December 31, 1904, by Epifanio Gomez, in the character of notary public, wherein he certifies that Marcelino Gomez had requested him to draw up a notarial act showing the properties of which Marcelino Gomez was known to be the true owner: upon which follows an enumeration of properties possessed by Ma