514. G.R. No.

L-45248 April 18, 1939

In the matter of the will of the deceased Eugenio Zuñiga del Rosario.
VICENTE REYES VILLAVICENCIO, applicant-appellee,
vs.
SANTIAGO QUINIO, ET AL., oppositors-appellants.

CONCEPCION, J.:

Eugenio Zuñiga del Rosario died in Batangas, Batangas, on December 19, 1934,
leaving a will executed with all the legal formalities, which was probated on February 1,
1935, over the opposition of some relatives.

The third clause of the said will translated from Tagalog into Spanish, reads as follows:

TERCERO: Declaro que tengo bienes inmuebles, muebles, semovientes, casa y

camarin que he heredado de mis padres y hermanos y, no teniendo yo heredero
forzoso como ya he dicho mas arriba, he dispuesto que mis citados bienes sean
destinados solamente para la paz y felicidad de mi alma y de las de mis padres y
hermanos, y tambien para el beneficio de la iglesia, en la manera siguiente:

Que el producto de los terrenos y las rentas de la casa y camarin, se invertiran

en misas el la iglesia catolica apostolica romana de Batangas, Batangas, del
modo que mas abajo se dispone, a saber:

(a) En sufragio de mi alma, se dira una misa todos los dias durante los tres años
consecutivos desde mi muerte y para los, años subsiguientes dos misas al año.

(b) Anualmente se diran dos misas: una en sufragio del alma de mi padre y otra
del de mi madre que en vida se llamaron Juan del Rosario y Victoria Quinio.

(c) Anualmente se diran dos misas dedicadas, una al sufragio de mi abuelo

Padre Mariano y otra al de su hermana llamada Maria.

(d) Una vez al año se dira la correspondiente misa por el sufragio de cada uno
de mis hermanos llamados Ignacio, Maria Asuncion, Placida, Maria Trinidad,
Justiniana y Vicente apellidados del Rosario, y

(e) Se diran anualmente una limosna de P10 a la Sagrada Virgen de este pueblo
de Batangas, Batangas, y otra limosna, tambien de P10, a Santo Niño, Patron de
este mismo pueblo.

Subsequently, Santiago Quinio and twenty-eight relatives of the testatrix within the fifth
degree in the collateral line, filed a motion with the conformity of the Bishop of Lipa
wherein, after stating how the said deceased Eugenia Zuñiga del Rosario had
disposed in her will of her properties by way of masses and alms, etc., they asked that
they be declared heirs of said testatrix charged with the duty to comply with its
provisions, as to which compliance, so they stated, they had already reached an
understanding with the Bishop of Lipa whereby the said movants, within ninety days
from the adjudication to them of the properties constituting the inheritance, would
deposit with said Bishop the necessary amount to defray the masses for three years,
1
and would likewise deposit in any bank designated for the purpose an amount the
interest of which would be sufficient to cover the other expenses for the annual masses
and alms ordained in the will.

The executor Vicente Reyes Villavicencio opposed the foregoing petition and the court
denied the latter by its order of March 30, 1936. The movants appealed and assigned
the following alleged errors in their brief:

The lower court erred in finding that the entire property, and not only a part
thereof, has been disposed by the deceased in her will.

The lower court erred in denying the oppositors-appellants their legal right to
share in the property of the deceased.

The lower court erred in not recognizing, as proper and lawful under the
circumstances, the compromise entered into by and between the Bishop of Lipa
and the herein oppositors-appellants, with regards to the manner by which
Paragraph III of the will may be carried out and given effect, it being understood
that the said mutual understanding will best promote and safeguard the manifest
and primordial intention of the testatrix.

The appellants contend that even after full compliance with the will of the testatrix, a
substantial balance would still remain after deducting the necessary expenses for
masses and alms and the amount of the allowance for support of Eulalia del Rosario,
and excluding the legacy left to Ubaldo Magbuhat and Engracio Alegria. As to that
balance, the appellants contend that the deceased Eugenia Zuñiga del Rosario died
partly intestate and that they are entitled to succeed her with respect to that part.

Such contention is based on something entirely inconsistent with that the testatrix
ordered in the third clause of her will. As will be seen, the appellants proceed on the
false assumption that for every mass celebrated for the soul of the testatrix and those
of her parents, brothers and sisters, something or a determinate amount from the fruits
of her properties had to be given. Proceeding on this assumption, it is possible that the
fruits of said properties would leave an excess which the testatrix has not disposed of.
However, as we have stated, such an assumption is untenable because the testatrix
has not provided that a certain amount be taken from the fruits of her properties for the
celebration of the masses ordered by her, but has said: "I have provided that my said
properties be devoted only for the peace and happiness of my soul and those of my
parents, brothers and sisters, and also for the benefit of the church, etc."; and,
continuing, she ordered "that the fruits of the lands and the income of the house and
warehouse, be spent for masses . . ." Hence, the testatrix has provided, not that
something out of the fruits and income of her properties be paid for the masses which
she has ordered to be celebrated for her soul and those of her parents, brothers and
sisters, but that all the fruits of the lands and all the income be spent for masses. For
this purpose, and doubtless foreseeing that the income of her properties would be
insufficient to cover the amount of the masses and of its other provisions, the testatrix
has ordered in the sixth and ninth paragraphs of her will that, if necessary, her
properties be sold with leave of court. Considering the provisions of the will of the
deceased Eugenia Zuñiga del Rosario in their entirety, her collateral relatives, not

2
being forced heirs, are not entitled to succeed her as to the remainder of her
properties, which does not exist, or as to the naked ownership thereof.

Said testamentary provisions, whose validity is not here questioned, should be

complied with because the testatrix, not having forced heirs as in the present case,
may dispose of her properties for masses and pious works for the benefit of her soul,
as provided in article 747 of the Civil Code. (6 Manresa, 6th ed., p. 24.)

The circumstances that the appellants had an understanding with the Bishop of Lipa as
to how they (not the executor) were to comply with the provisions made by the testatrix
after they had been declared heirs and after the properties left by the deceased
relatives had been adjudicated to them does not support their contentions in the
slightest, because the Bishop's intervention in this case cannot validate any
arrangement calculated to defeat the testamentary provisions inasmuch as the testatrix
did not leave anything to the Roman Catholic Church which might be under the
administration or supervision of the Bishop.

The appealed order is affirmed with the costs of both instances to the appellants. So
ordered.

515. G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner,

vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch
XXXVIII, Court of First Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent
judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and
allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-
parte presentation of evidence by herein private respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios
C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was
the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74,
Section I of the Rules of Court whereby he adjudicated unto himself the ownership of
the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the
reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed
in the United States and for her appointment as administratrix of the estate of the
deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of
her death and was a permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while
temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her
3
lifetime, the testatrix made her last wig and testament on July 10, 1975, according to
the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as
executor; that after the testatrix death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wins at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed
after Dr. Barzaga had declined and waived his appointment as executor in favor of the
former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent
need for the appointment of an administratrix to administer and eventually distribute the
properties of the estate located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein
petitioner alleging among other things, that he has every reason to believe that the will
in question is a forgery; that the intrinsic provisions of the will are null and void; and
that even if pertinent American laws on intrinsic provisions are invoked, the same could
not apply inasmuch as they would work injustice and injury to him.

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco
Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating
that he "has been able to verify the veracity thereof (of the will) and now confirms the
same to be truly the probated will of his daughter Adoracion." Hence, an ex-
partepresentation of evidence for the reprobate of the questioned will was made.

On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C.

Campos, in her lifetime, was a citizen of the United States of America with
a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124,
(Exhibit D) that when alive, Adoracion C. Campos executed a Last Will and
Testament in the county of Philadelphia, Pennsylvania, U.S.A., according
to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary sojourn in
the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C)
leaving property both in the Philippines and in the United States of
America; that the Last Will and Testament of the late Adoracion C. Campos
was admitted and granted probate by the Orphan's Court Division of the
Court of Common Pleas, the probate court of the Commonwealth of
Pennsylvania, County of Philadelphia, U.S.A., and letters of administration
were issued in favor of Clement J. McLaughlin all in accordance with the
laws of the said foreign country on procedure and allowance of wills
(Exhibits E to E-10); and that the petitioner is not suffering from any
disqualification which would render her unfit as administratrix of the estate
in the Philippines of the late Adoracion C. Campos.

WHEREFORE, the Last Will and Testament of the late Adoracion C.

Campos is hereby admitted to and allowed probate in the Philippines, and
Nenita Campos Paguia is hereby appointed Administratrix of the estate of
said decedent; let Letters of Administration with the Will annexed issue in
favor of said Administratrix upon her filing of a bond in the amount of
P5,000.00 conditioned under the provisions of Section I, Rule 81 of the
Rules of Court.

4
Another manifestation was filed by the petitioner on April 14, 1979, confirming the
withdrawal of his opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order
allowing the will be set aside on the ground that the withdrawal of his opposition to the
same was secured through fraudulent means. According to him, the "Motion to Dismiss
Opposition" was inserted among the papers which he signed in connection with two
Deeds of Conditional Sales which he executed with the Construction and Development
Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the
withdrawal of the opposition was not his counsel-of-record in the special proceedings
case.

The petition for relief was set for hearing but the petitioner failed to appear. He made
several motions for postponement until the hearing was set on May 29, 1980.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set
Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In
this motion, the notice of hearing provided:

Please include this motion in your calendar for hearing on May 29, 1980 at
8:30 in the morning for submission for reconsideration and resolution of the
Honorable Court. Until this Motion is resolved, may I also request for the
future setting of the case for hearing on the Oppositor's motion to set aside
previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case
was called for hearing on this date, the counsel for petitioner tried to argue his motion
to vacate instead of adducing evidence in support of the petition for relief. Thus, the
respondent judge issued an order dismissing the petition for relief for failure to present
evidence in support thereof. Petitioner filed a motion for reconsideration but the same
was denied. In the same order, respondent judge also denied the motion to vacate for
lack of merit. Hence, this petition.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which,
incidentally has been questioned by the respondent, his children and forced heirs as,
on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute
herself as petitioner in the instant case which was granted by the court on September
13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner
Hermogenes Campos merged upon his death with the rights of the respondent and her
sisters, only remaining children and forced heirs was denied on September 12, 1983.

Petitioner Cayetano persists with the allegations that the respondent judge acted
without or in excess of his jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to
Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver
of rights or interests against the estate of deceased Adoracion C. Campos,

5
 thus, paving the way for the hearing ex-parte of the petition for the probate
of decedent will.

2) He ruled that petitioner can waive, renounce or repudiate (not made in a

public or authenticated instrument), or by way of a petition presented to the
court but by way of a motion presented prior to an order for the distribution
of the estate-the law especially providing that repudiation of an inheritance
must be presented, within 30 days after it has issued an order for the
distribution of the estate in accordance with the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by
a decree admitting a will to probate in which no provision is made for the
forced heir in complete disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence

was adduced to support the Petition for Relief when no Notice nor hearing
was set to afford petitioner to prove the merit of his petition — a denial of
the due process and a grave abuse of discretion amounting to lack of
jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the
Testator at the time of death was a usual resident of Dasmariñas, Cavite,
consequently Cavite Court of First Instance has exclusive jurisdiction over
the case (De Borja vs. Tan, G.R. No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the
respondent judge acted with grave abuse of discretion when he allowed the withdrawal
of the petitioner's opposition to the reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was
adduced to support petitioner's contention that the motion to withdraw was secured
through fraudulent means and that Atty. Franco Loyola was not his counsel of record.
The records show that after the firing of the contested motion, the petitioner at a later
date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition
was his voluntary act and deed. Moreover, at the time the motion was filed, the
petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case
and had been substituted by Atty. Franco Loyola who in turn filed the motion. The
present petitioner cannot, therefore, maintain that the old man's attorney of record was
Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the
respondent judge acted correctly in hearing the probate of the will ex-parte, there being
no other opposition to the same.

The third issue raised deals with the validity of the provisions of the will. As a general
rule, the probate court's authority is limited only to the extrinsic validity of the will, the
due execution thereof, the testatrix's testamentary capacity and the compliance with
the requisites or solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the court has declared that the will has been duly authenticated.
However, where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue. (Maninang
vs. Court of Appeals, 114 SCRA 478).
6
In the case at bar, the petitioner maintains that since the respondent judge allowed the
reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime
which was reserved by the law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the
respondent judge should have denied its reprobate outright, the private respondents
have sufficiently established that Adoracion was, at the time of her death, an American
citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore,
under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:

Art. 16 par. (2).

xxx xxx xxx

However, intestate and testamentary successions, both with respect to the

order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country
wherein said property may be found.

Art. 1039.

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A.,
which is the national law of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and that all the estate may be given
away by the testatrix to a complete stranger, the petitioner argues that such law should
not apply because it would be contrary to the sound and established public policy and
would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as
provided for by Article 16(2) and 1039 of the Civil Code, the national law of the
decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20
SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be

involved in our system of legitimes, Congress has not intended to extend
the same to the succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional rights, to the
decedent's national law. Specific provisions must prevail over general ones.

xxx xxx xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the
State of Texas, U.S.A., and under the law of Texas, there are no forced
heirs or legitimes. Accordingly, since the intrinsic validity of the provision of
the will and the amount of successional rights are to be determined under
7
 Texas law, the Philippine Law on legitimes cannot be applied to the testacy
of Amos G. Bellis.

As regards the alleged absence of notice of hearing for the petition for relief, the
records wig bear the fact that what was repeatedly scheduled for hearing on separate
dates until June 19, 1980 was the petitioner's petition for relief and not his motion to
vacate the order of January 10, 1979. There is no reason why the petitioner should
have been led to believe otherwise. The court even admonished the petitioner's failing
to adduce evidence when his petition for relief was repeatedly set for hearing. There
was no denial of due process. The fact that he requested "for the future setting of the
case for hearing . . ." did not mean that at the next hearing, the motion to vacate would
be heard and given preference in lieu of the petition for relief. Furthermore, such
request should be embodied in a motion and not in a mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid
of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:

SECTION 1. Where estate of deceased persons settled. — If the decedent

is an inhabitant of the Philippines at the time of his death, whether a citizen
or an alien, his will shall be proved, or letters of administration granted, and
his estate settled, in the Court of First Instance in the province in which he
resided at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with
the Court of First Instance of Manila where she had an estate since it was alleged and
proven that Adoracion at the time of her death was a citizen and permanent resident of
Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged
by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction
of the probate court in the petition for relief. It is a settled rule that a party cannot
invoke the jurisdiction of a court to secure affirmative relief, against his opponent and
after failing to obtain such relief, repudiate or question that same jurisdiction. (See
Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of
merit.

SO ORDERED.

8
G.R. No. L-10560 March 24, 1916

516. In the matter of the administration of the estate of Tan Po Pic, deceased.
MARTA TORRES, petitioner-appellant,
vs.
JUAN L. JAVIER, as administrator of the estate of Tan Po Pic,
deceased, respondent-appellee..

MORELAND, J.:

This is an appeal in proceeding to appoint an administrator of the estate of Tan Po Pic,

deceased. The trial court refused to appoint Marta Torres who claimed to be the lawful
wife of the deceased, and, instead, appointed Juan L. Javier administrator. The appeal
is taken by Marta Torres from that order of appointment.

It appears that two women are claiming to be the legal wife of Tan Po Pic, deceased,
Marta Torres and a Chinese woman named Yu Teng New. Marta Torres objected to
the appointment of any one except herself, while Juan Cailles Tan Poo, on behalf of
the Chinese woman, opposed the appointment of Marta Torres. The probate court
being unable to determine who, if either, was the lawful wife of the deceased,
appointed a disinterested third person to act as administrator.

We are of the opinion that the decision of the probate court is so far correct that it must
be affirmed. Section 642 of the Code of Civil Procedure requires that letters of
administration should be granted, first, to the surviving husband or wife; second, to
other relatives in the order named; third, in case the surviving wife or next of kin or
person selected by them be unsuitable, the administration may be granted to some
other person, such as one of the principal creditors; and fourth, if there is no such
creditor competent and willing to serve, the administration may go to such person as
the court may appoint.

The first error assigned is that the court erred in allowing Tan Y. Soc to appear in the
proceeding. It appears that Tan Y. Soc was appointed administrator of the said Tan Po
Pic, deceased, the Court of First Instance of Manila under the misapprehension that
Tan Po Pic was a resident of the city of Manila at the time of his death. After it ad been
ascertained that the deceased was a resident of the Province of Rizal, the Court of
First Instance of Manila transferred the case to the Court of First Instance of Rizal. In
that court, as we have already seen, the appointment by the Court of First Instance of
Manila was disregarded the proceedings were begun for the appointment of an
administrator by the Court of First Instance of Rizal. Tan Y. Soc and Juan Cailles Tan
Poo appeared in those proceedings, apparently representing the interests of Yu Teng
New, the alleged Chinese wife of the deceased. Messrs. Crossfield & O'Brien,
attorneys for the appellee in this case, appeared for the alleged Chinese wife and
acted in conjunction with Tan Y. Soc and Juan Cailles Tan Poo in protecting her
interests.

The second error assigned is that the court erred in taking into consideration the claim
that Tan Po Pic, deceased, had a Chinese wife in China. It must be remembered that
the probate court did not find as a fact that there was a wife in China; nor does his
appointment of a third person determine the fact of the existence of another wife in
9
China. The court considered the facts and circumstances as they were presented in
the proceedings and upon the whole believed it for the best interest of all concerned to
appoint as administrator a disinterested third person, particularly in view of the fact that
there was likely to be litigation between Marta Torres and the Chinese wife as to which
is in fact his legal wife and entitled to an interest in the estate of the deceased Tan Po
Pic. We do not find the errors assigned sufficient to warrant any action on the part of
this court.

The third error assigned is to the effect that the trial court erred in not finding that Marta
Torres was the lawful wife of the deceased Tan Po Pic. We do not believe the court
erred in this respect. The court had a right in view of the controversy between the
women to name a disinterested third person as administrator and leave the controversy
between them to be settled in the administration proceedings at the proper time.

The judgment appealed from is affirmed, with costs against the appellant. So ordered.

517. G.R. No. L-48541 January 30, 1943

VALERIANA QUION, ETC., plaintiffs-appellees,

vs.
VICENTE CLARIDAD, ET AL., defendants.
VICENTE CLARIDAD, GODOFREDO FAMY and EULALIA CLARIDAD, appellants.

DAVID, J.:

1. DESCENT AND DISTRIBUTION; FRAUDULENT CONCEALMENT OF

DECEDENT'S HEIRS BY HIS SECOND MARRIAGE; RIGHT OF SAID HEIRS
TO RECOVER ONE-HALF OF DECEDENT'S ESTATE. — In the intestate
proceedings of a deceased, prosecuted by appellants, the latter knowingly
concealed the fact that said deceased left a second wife with whom he had two
children, namely, herein appellees. Held: That the trial court, in a subsequent
action brought by appellees to recover their legal participations in the deceased's
estate, correctly declared said appellees coowners of the estate in question to
the to the extent of one-half thereof, with right to its possession.

2. ID.; ID.; ID.; ACTION FOR RELIEF ON THE GROUND OF FRAUD

DISTINGUISHED FROM REOPENING OF INTESTATE PROCEEDINGS. —
There is no merit in appellant's claim that the intestate proceedings could no
longer be reopened after the expiration of the two-year period fixed in section
597 and 598 of the Code of Civil Procedure. It suffices to state that this is an
action by the heirs of the deceased by his second marriage whose dominion over
their share in the inheritance was automatically and by operation of law vested in
them upon the death of said deceased, subject only to the lien of the latter's
creditors, for the purpose of obtaining relief on the ground of fraud, which action
may be brought within four years after the discovery of the fraud, in accordance
with section 43 of the Code of Civil Procedure.

10
518. G.R. No. L-11796 August 5, 1918

In the matter of estate of Samuel Bischoff Werthmuller. ANA M.

RAMIREZ, executrix-appellant,
vs.
OTTO GMUR, as guardian of the minors Esther Renate Mory, Carmen Maria
Mory, and Leontina Elizabeth,claimant-appellant.

STREET, J.:

Samuel Bischoff Werthmuller, native of the Republic of Switzerland, but for many years
a resident of the Philippine Islands, died in the city of Iloilo on June 29, 1913, leaving a
valuable estate of which he disposed by will. A few days after his demise the will was
offered for probate in the Court of First Instance of Iloilo and, upon publication of
notice, was duly allowed and established by the court. His widow, Doña Ana M.
Ramirez, was named as executrix in the will, and to her accordingly letters
testamentary were issued. By the will everything was given to the widow, with the
exception of a piece of real property located in the City of Thun, Switzerland, which
was devised to the testator's brothers and sisters.

The first cause of the will contains a statement to the effect that inasmuch as the
testator had no children from his marriage with Ana M. Ramirez he was therefore
devoid of forced heirs. In making this statement the testator ignored the possible claims
of two sets of children, born to his natural daughter, Leona Castro.

The pertinent biographical facts concerning Leona Castro are these: As appears from
the original baptismal entry made in the church record of Bacolod, she was born in
that pueblo on April 11, 1875, her mother being Felisa Castro, and father "unknown."
Upon the margin of this record there is written in Spanish an additional annotation of
the following tenor: "According to a public document (escritura) which was exhibited,
she was recognized by Samuel Bischoff on June 22, 1877." This annotation as well as
the original entry is authenticated by the signature of Father Ferrero, whose deposition
was taken in this case. He testifies that the work "escritura" in this entry means a public
document; and he says that such document was exhibited to him when the marginal
note which has been quoted was added to the baptismal record and supplied the basis
for the annotation in question.

As the years passed Leona Castro was taken into the family of Samuel Bischoff and
brought up by him and his wife a a member of the family; and it is sufficiently shown by
the evidence adduced in this case that Samuel Bischoff tacitly recognized Leona a his
daughter and treated her as such. In the year 1895 Leona Castro was married to
Frederick von Kauffman, a British subject, born in Hong Kong, who had come to live in
the city of Iloilo. Three children were born of this marriage, namely, Elena, Federico,
and Ernesto, the youngest having been born on November 10, 1898. In the month of
April 1899, Leona Castro was taken by her husband from Iloilo to the City of Thun,
Switzerland, for the purpose of recuperating her health. She was there placed in a
sanitarium, and on August 20th the husband departed for the Philippine Islands, where
he arrived on October 10, 1899.

11
Leona Castro continued to remain in Switzerland, and a few years later informed her
husband, whom she had not seen again, that she desired to remain free and would not
resume life in common with him. As a consequence, in the year 1904, Mr. Kauffman
went to the City of Paris, France, for the purpose of obtaining a divorce from his wife
under the French laws; and there is submitted in evidence in this case a certified copy
of an extract from the minutes of the Court of First Instance of the Department of the
Seine, from which it appears that a divorce was there decreed on January 5, 1905, in
favor of Mr. Kauffman and against his wife, Leona, in default. Though the record recites
that Leona was then in fact residing at No. 6, Rue Donizetti, Paris, there is no evidence
that she had acquired a permanent domicile in that city.

The estrangement between the von Kauffman spouses is explained by the fact that
Leona Castro had become attracted to Dr. Ernest Emil Mory, the physician in charge of
the sanatorium in Switzerland where she was originally placed; and soon after the
decree of divorce was entered, as aforesaid, Doctor Mory and Leona Castro repaired
to the City of London, England, and on May 5, 1905, in the registrar's office in the
district of Westminster, went through the forms of a marriage ceremony before an
officer duly qualified to celebrate marriage under the English law. It appears that Doctor
Mory himself had been previously married to one Helena Wolpman, and had been
divorced from her; but how or under what circumstances this divorce had been
obtained does not appear.

Prior to the celebration of this ceremony of marriage a daughter, named Leontina

Elizabeth, had been born (July 21, 1900) to Doctor Mory and Leona Castro, in Thun,
Switzerland. On July 2, 1906, a second daughter, named Carmen Maria, was born to
them in Berne, Switzerland, now the place of their abode; and on June 10, 1909, a
third daughter was born, name Esther. On October 6, 1910, the mother died.

In the present proceedings Otto Gmur has appeared as the guardian of the three Mory
claimants, while Frederick von Kauffman has appeared as the guardian of his own
three children, Elena, Federico, and Ernesto.

As will be surmised from the foregoing statement, the claims of both sets of children
are founded upon the contention that Leona Castro was the recognized natural
daughter of Samuel Bischoff and that as such she would, if living, at the time of her
father's death, have been a forced heir of his estate and would have been entitled to
participate therein to the extend of a one-third interest. Ana M. Ramirez, as the widow
of Samuel Bischoff and residuary legatee under his will, insists — at least as against
the Mory claimants, — that Leona Castro had never been recognized at all by Samuel
Bischoff.

In behalf of Leontina, the oldest of the Mory claimants, it was originally insisted in the
court below, that, having been born while her mother still passed as the wife of
Frederick von Kauffman, she was to be considered as a legitimate daughter of the
wedded pair. This contention has been abandoned on this appeal a untenable; and it is
now contended here merely that, being originally the illegitimate daughter of Doctor
Mory and Leona Castro, she was legitimated by their subsequent marriage.

In behalf of Carmen Maria and Esther Renate, the two younger of the Mory claimants,
it is argued that the bonds of matrimony which united Frederick von Kauffman and
12
Leona Castro were dissolved by the decree of divorce granted by the Paris court on
January 5, 1905; that the marriage ceremony which was soon thereafter celebrated
between Doctor Mory and Leona in London was in all respects valid; and that therefore
these claimants are to be considered the legitimate offspring of their mother.

In behalf of the children of Frederick von Kauffman it is insisted that the decree of
divorce was wholly invalid, that all three of the Mory children are the offspring of
adulterous relations, and that the von Kauffman children, as the legitimate offspring of
Leona Castro, are alone entitled to participate in the division of such part of the estate
of Samuel Bischoff as would have been inherited by their mother, if living.

We are of the opinion that the status of Leona Castro as recognized natural daughter
of Samuel Bischoff is fully and satisfactorily shown. It is proved that prior to her
marriage with Frederick von Kauffman she was in an uninterrupted enjoyment of the de
facto status of a natural child and was treated as such by Samuel Bischoff and his
kindred. The proof of tacit recognition is full and complete.

From the memorandum made by Padre Ferrero in the record of the birth, as well as
from the testimony of this priest, taken upon the deposition, it also appears that Samuel
Bischoff had executed a document, authenticated by a notarial act, recognizing Leona
as his daughter, that said document was presented to the priest, as custodian of the
church records, and upon the faith of that document the marginal note was added to
the baptismal record, showing the fact of such recognition. The original document itself
was not produced in evidence but it is shown that diligent search was made to discover
its whereabouts, without avail. This was sufficient to justify the introduction of
secondary evidence concerning its contents; and the testimony of the priest show that
the fact of recognition was therein stated. Furthermore, the memorandum in the
baptismal record itself constitutes original and substantive proof of the facts therein
recited.

It will be observed that the recognition of Leona Castro as the daughter of Samuel
Bischoff occurred prior to the date when the Civil Code was put in force in these
Islands; and consequently her rights as derived from the recognition must be
determined under the law as it then existed, that is, under Law 11 of Toro, which
afterwards became Law 1, title 5, book 10, of the Novisima Recopilacion.
(See Capistrano vs. Estate of Gabino, 8 Phil., 135, 139, where this statute is quoted in
the opinion written by Mr. Justice Torres.) Under that law recognition could be
established by proof of acts on the part of the parent unequivocally recognizing the
status of his offspring. (Cosio vs.Pili, 10 Phil., 72, 77.) In other words at tacit
recognition was sufficient. Under article 131 of the present Civil Code, the
acknowledgment of a natural child must be made in the record of birth, by will, or in
other public instrument. We are of the opinion that the recognition of Leona Castro is
sufficiently shown whether the case be judged by the one provision or the other.

But it is contended by counsel for Doña Ana Ramirez that only children born of persons
free to marry may possess the status of recognized natural children, and there is no
evidence to show that Felisa Catro was either a single woman or widow at the time of
the conception or birth of Leona. In the absence of proof to the contrary, however, it
must be presumed that she was a single woman or a widow.

13
Relative to this presumption of the capacity of the parents to marry, the author
Sanchez Roman makes the following comment:

Furthermore, viewing the conception of natural child in connection with two

mutually interrelated circumstances, to wit, the freedom of the parents to
intermarry, with or without dispensation, at the time of the conception of the
offspring stigmatized as natural, the first of these, or freedom to marry, is a point
upon which there is, according to the jurisprudence of our former law, whose
spirit is maintained in the Code, an affirmative presumption which places the
burden of proving the contrary upon those who are interested in impugning the
natural filiation. (Vol. 5, Derecho Civil, pp. 1018-1019.)

The contrary presumption would be that Felisa Castro was guilty of adultery, which
cannot be entertained. If such had in fact been the case, the burden of proving it would
have been upon the persons impugning the recognition of the child by her father. (Sec.
334, par. 1, Code of Civil Procedure.)

From the fact that Leona Castro was an acknowledged natural daughter of her father, it
follows that had she survived him she would have been his forced heir, he having died
after the Civil Code took effect. (Civil Code, article 807 [3], art. 939; Civil Code, first
transitory disposition); and as such forced heir she would have been entitled to one-
third of the inheritance (art. 842, Civil Code).

With reference to the right of the von Kauffman children, it is enough to say that they
are legitimate children, born to their parents in lawful wedlock; and they are therefore
entitled to participate in the inheritance which would have devolved upon their mother,
if he had survived the testator.

As regards the Mory claimants, it is evident that their rights principally depend upon the
effect to be given by this court to the decree of divorce granted to von Kauffman by the
Court of First Instance of the City of Paris. If this decree is valid, the subsequent
marriage of Doctor Mory and Leona Castro must also be conceded to be valid; and as
a consequence the two younger children, born after said marriage, would be the
legitimate offspring of their mother, and would be entitle to participate in their mother's
portion of Mr. Bischoff's estate. With respect to Leontina Elizabeth, the older one of the
Mory claimants, there would in the case still be the insuperable obstacle which results
from the fact that she was the offspring of adulterous intercourse and a such was
incapable of legitimation (art. 119, Civil Code).

We are of the opinion that the decree of divorce upon which reliance is placed by the
representation of the Mory children cannot be recognized as valid in the courts of the
Philippine Islands. The French tribunal has no jurisdiction to entertain an action for the
dissolution of a marriage contracted in these Islands by person domiciled here, such
marriage being indissoluble under the laws then prevailing in this country.

The evidence shows conclusively that Frederick von Kauffman at all times since
earliest youth has been, and is now, domiciled in the city of Iloilo in the Philippine
Islands; that he there married Leona Castro, who was a citizen of the Philippine
Islands, and that Iloilo was their matrimonial domicile; that his departure from iloilo for
the purpose of taking his wife to Switzerland was limited to that purpose alone, without
14
any intent to establish a domicile elsewhere; and finally that he went to Paris in 1904,
for the sole purpose of getting a divorce, without any intention of establishing a
permanent residence in that city. The evidence shows that the decree was entered
against the defendant in default, for failure to answer, and there is nothing to show that
she had acquired, or had attempted to acquire, a permanent domicile in the City of
Paris. It is evident of course that the presence of both the spouses in that city was due
merely to the mutual desire to procure a divorce from each other.

It is established by the great weight of authority that the court of a country in which
neither of the spouses is domiciled and to which one or both of them may resort merely
for the purpose of obtaining a divorce has no jurisdiction to determine their matrimonial
status; and a divorce granted by such a court is not entitled to recognition elsewhere.
(See Note to Succession of Benton, 59 L. R. A., 143.) The voluntary appearance of the
defendant before such a tribunal does not invest the court with jurisdiction.
(Andrews vs. Andrews, 188 U. S., 14; 47 L. ed., 366.)

It follows that, to give a court jurisdiction on the ground of the plaintiff's residence in the
State or country of the judicial forum, his residence must be bona fide. If a spouse
leaves the family domicile and goes to another State for the sole purpose of obtaining
a divorce, and with no intention of remaining, his residence there is not sufficient to
confer jurisdiction on the courts of that State. This is especially true where the cause of
divorce is one not recognized by the laws of the State of his own domicile. (14 Cyc.,
817, 818.)

As have been well said by the Supreme Court of the United States marriage is an
institution in the maintenance of which in its purity the public is deeply interested, for it
is the foundation of the family and of society, without which there could be neither
civilization nor progress. (Maynard vs. Hill, 125 U. S., 210; 31 L. ed., 659.) Until the
adoption of Act No. 2710 by the Philippine Legislature (March 11, 1917), it had been
the law of these Islands that marriage, validly contracted, could not be dissolved
absolutely except by the death of one of the parties; and such was the law in this
jurisdiction at the time when the divorce in question was procured. The Act to which we
have referred permits an absolute divorce to be granted where the wife has been guilty
of adultery or the husband of concubinage. The enactment of this statute undoubtedly
reflect a change in the policy of our laws upon the subject of divorce, the exact effect
and bearing of which need not be here discussed. But inasmuch as the tenets of the
Catholic Church absolutely deny the validity of marriages where one of the parties is
divorced, it is evident that the recognition of a divorce obtained under the conditions
revealed in this case would be as repugnant to the moral sensibilities of our people as
it is contrary to the well-established rules of law.

As the divorce granted by the French court must be ignored, it results that the marriage
of Doctor Mory and Leona Castro, celebrated in London in 1905, could not legalize
their relations; and the circumstance that they afterwards passed for husband and wife
in Switzerland until her death is wholly without legal significance. The claims of the
Mory children to participate in the estate of Samuel Bischoff must therefore be rejected.
The right to inherit is limited to legitimate, legitimated, and acknowledged natural
children. The children of adulterous relations are wholly excluded. The word
"descendants," as used in article 941 of the Civil Code cannot be interpreted to include
illegitimates born of adulterous relations.
15
An important question arises in connection with the time within which the claims of the
two sets of children were presented to the court. In this connection it appears that the
will of Samuel Bischoff was probated in August, 1913. A committee on claims was
appointed and it report was field and accepted February 20, 1914. About the same
time Otto Gmur entered an appearance for the Mory claimants and petitioned the court
to enter a decree establishing their right to participate in the distribution of the estate.
The executrix, Doña Ana Ramirez, answered the petition denying that said minors
were the legitimate children of Leona Castro and further denying that the latter was the
recognized natural daughter of Samuel Bischoff. Upon the issues thus presented a trial
was had before the Honorable Fermin Mariano, and on December 29, 1915, he
rendered a decision in which he held (1) that Leona Castro was the recognized natural
daughter of Samuel Bischoff; (2) that the minor, Leontina Elizabeth, is a legitimate
daughter of Leona Castro; and (3) that the minors Carmen Maria and Esther Renate
are illegitimate children of Leona Castro.

From these facts the court drew the conclusion that Leontina Elizabeth was entitled to
one-third of the estate of the late Samuel Bischoff, and that his widow, Doña Ana
Ramirez, was entitled to the remaining two-thirds. From this decision both Doña Ana
Ramirez and Otto Gmur, as guardian, appealed.

Shortly after the appeals above-mentioned were taken, Mr. Frederick von Kauffman
made application to the Court of First Instance of Iloilo by petition filed in the
proceedings therein pending upon the estate of the late Samuel Bischoff for
appointment as guardian ad litem of his minor children, the von Kauffman heirs, which
petition was granted by order dated March 4, 1916. Thereafter, on April 1, 1916, von
Kauffman, on behalf of the said minors, filed in the cause a petition setting forth their
right to share in the estate. This petition was answered by Mr. Otto Gmur, guardian, on
April 26, 1916, the sole contention of said answer being that the matter to which the
petition relates had been disposed of by the decision of the Court of First Instance
rendered in said proceedings by Judge Mariano on December 9, 1915. Doña Ana
Ramirez answered denying all the allegations of von Kauffman's petition.

The trial of the petition of von Kauffman, as guardian, came on for hearing before the
Court of First Instance of Iloilo on the 10th day of August, 1916. Upon the evidence
taken at that hearing the Honorable J. S. Powell, as judge then presiding in the Court
of First Instance of Iloilo, rendered a decision under date of November 14, 1916, in
which he found as a fact Leona Castro was the acknowledged natural daughter of
Samuel Bischoff and that the minors, Elena, Fritz, and Ernesto, are the legitimate
children of Frederick von Kauffman and the said Leona Castro, born in lawful wedlock.
Upon the facts so found, Judge Powell based his conclusion that all that portion of the
estate of Samuel Bischoff pertaining to Leona Castro should be equally divided among
the children Federico, Ernesto, and Elena, thereby excluding by inference the Mory
claimants from all participation in the estate.

From this judgments an appeal was taken by Mr. Otto Gmur as guardian, no appeal
having taken by Doña Ama Ramirez.

Though the circumstance is now of no practical importance, it may be stated in passing

that the appeals of Doña Ana Ramirez and of Otto Gmur, guardian, from the decision
of Judge Mariano of December 9, 1915, and the appeal of Otto Gmur, guardian from
16
the decision of Judge Powell, of November 14, 1916, were brought to this court
separately; but the causes were subsequently consolidated and have been heard
together. The parties to the litigation have also stipulated that all the "evidence,
stipulations and admissions in each of the two proceedings above-mentioned may be
considered for all purposes by this court in the other." The case is therefore considered
here as though there had been but one trial below and all the issues of law and fact
arising from the contentions of the oppossing claimants had been heard at the same
time.

Upon the facts above stated it is insisted for Ana M. Ramirez that her rights to the
estate under the will of Samuel Bischoff were at the latest determined by the final
decree of December 29, 1915; and that it was thereafter incompetent for the court to
take cognizance of the application of the Mory claimants. If this contention is
sustainable, the same considerations would operate to defeat the later application filed
on behalf of the von Kauffman children — and indeed with even greater force, — since
this application was not made until the appeals from the decree of December 9, 1915,
had actually been perfected and the cause had been transferred to the Supreme Court.

Two questions are here involved, one as to the effect of the probate of a will upon the
rights of forced heirs who do not appear to contest the probate, and the other as to the
conclusiveness and finality of an order for the distribution of an estate, as against
persons who are not before the court.

Upon the first of these questions it is enough to say that the rights of forced heirs to
their legitime are not divested by the decree admitting a will to probate, — and this
regardless of the fact that no provision has been made for them in the will, for the
decree of probate is conclusive only a regards the due execution of the will, the
question of its intrinsic validity not being determined by such decree. (Code of Civil
Procedure, sec. 625; Castañeda vs. Alemany, 3 Phil., 426; Sahagun vs. De Gorostiza,
7 Phil., 347; JocSoy vs. Vaño, 8 Phil., 119; Limjuco vs. Ganara, 11 Phil., 393, 395;
Austria vs. Ventenilla, 21 Phil., 180.)

Indeed it is evident, under the express terms of the proviso to section 753 of the Code
of Civil Procedure, that the forced heirs cannot be prejudiced by the failure of the
testator to provide for them in his will; and regardless of the intention of the testator to
leave all his property, or practically all of it, to his wife, the will is intrinsically invalid so
far a it would operate to cut off their rights.

The question as to the conclusiveness of the order of distribution can best be

considered with reference to the von Kauffman children, as the solution of the problem
as to them necessarily involves the disposition of the question as to the Mory
claimants.

It is evident that the von Kauffman children cannot be considered to have been in any
sense parties to the proceeding at the time Judge Mariano rendered his decision. So
far a the record shows the court was then unaware even of their existence. No notice
of any kind was served upon them; nor was any person then before the court
authorized to act in their behalf. Nevertheless, as we have already shown, upon the
death of Samuel Bischoff, the right to participate in his estate vested immediately in
this children, to the extent to which their mother would have been entitled to participate
17
had she survived her father. If the right vested upon the death of Samuel Bischoff, how
has it been since divested?

The record shows that the decision of December 29, 1915, in which Judge Mariano
holds that the estate should be divided between Leontina Elizabeth and the residuary
legatee Doña Ana Ramirez, was made without publication of notice, or service of any
kind upon other persons who might consider themselves entitled to participate in the
estate.

The law in force in the Philippine Islands regarding the distribution of estates of
deceased persons is to be found in section 753 et seq., of the Code of Civil Procedure.
In general terms the law is that after the payment of the debts and expenses of
administration the court shall distribute the residue of the estate among the persons
who are entitled to receive it, whether by the terms of the will or by operation of law. It
will be noted that while the law (sec. 754) provides that the order of distribution may be
had upon the application of the executor or administrator, or of a person interested in
the estate, no provision is made for notice, by publication or otherwise, of such
application. The proceeding, therefore, is to all intents and purposes ex parte. A will be
seen our law is very vague and incomplete; and certainly it cannot be held that a
purely ex parte proceeding, had without notice by personal service or by publication, by
which the court undertakes to distribute the property of deceased persons, can be
conclusive upon minor heirs who are not represented therein.

Section 41 of the Code of Civil Procedure provides that ten years actual adverse
possession by "occupancy, grant, descent, or otherwise' shall vest title in the
possessor. This would indicate that a decree of distribution under which one may be
placed in possession of land acquired by descent, is not in itself conclusive, and that, a
held in Layre vs.Pasco (5 Rob. [La.], 9), the action of revindication may be brought by
the heir against the persons put in possession by decree of the probate court at any
time within the period allowed by the general statute of limitations.

Our conclusion is that the application of the von Kauffman children was presented in
ample time and that the judgment entered in their favor by Judge Powell was correct.
The Mory claimants, as already stated, are debarred from participation in the estate on
other grounds.

So much of the judgment entered in the Court of First Instance, pursuant to the
decision of Judge Mariano of December 29, 1915, as admits Leontina Elizabeth Mory
to participate in the estate of Samuel Bischoff is reversed; and instead the von
Kauffman children will be admitted to share equally in one-third of the estate as
provided in the decision of Judge Powell of November 14, 1916. In other respects the
judgment of Judge Mariano is affirmed. The costs of this instance will be paid out of the
estate. So ordered.

18
519. G.R. No. L-21334 December 10, 1924

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, petitioner,

vs.
ANASTASIA ABADILLA, ET AL., claimants.
THE MUNICIPALITY OF TAYABAS, ET AL., claimants-appellees,
MARIA PALAD, ET AL., claimants-appellants.

OSTRAND, J.:

This is an appeal from a judgment in cadastral and 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 the 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 titled to the land by composicion gratuita in
1894. On January 25, 1892, Palad executed a holographic will party in Spanish and
partly in Tagalog. Palad died on 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, 1987, 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:

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 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 be 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.

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 an agreement was arrived at by
19
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 solution 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-known rule that testamentary dispositions must be liberally construed so as

to give effect to the intention of the testator as 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 Stated than 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 American and English equity jurisprudence are derived from
thefidei 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 to what in English is termed a municipal corporation and

it may be conceded that the ordinary municipal government in these Island 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 function and power of the two offices may
vary somewhat, but it cannot be successfully disputed that one office is the legal
20
successor of the other. It might as well be contended that when under the present
regime the title of the chief executive of the Philippine 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 acts as trustee in the present case.

In regard to private trust 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 vs. Frazier, 2 Hill Ch., 305; Ashurt vs. Given, 5
Watts & S., 329; Carson vs. 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 trustees. In charitable trust 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 reads as follows:

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 public
educational institution, shall be valid under the following conditions:

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.

It is true that minor distinctions may possibly be drawn between the case before us and
that presupposed in the article quoted, but the general principle is 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 heirs. 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 the third party. The

21
devisee is not uncertain and the devise is therefore are 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 the devise for some reason should fail, an 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 income
of the property accumulate for the benefit of the proposed school until the same should
be established.lawphi1.net

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
Limitation does 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.

520. G.R. No. L-65800 October 3, 1986

PARTENZA LUCERNA VDA. DE TUPAS, petitioner-appellant,

vs.
BRANCH XLIII of the HON. REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL,
respondent, and TUPAS FOUNDATION, INC., private respondent-appellee.

NARVASA, J.:

Involved in this appeal is the question of whether or not a donation inter vivos by a
donor now deceased is inofficious and should be reduced at the instance of the donor's
widow.

Epifanio R. Tupas died on August 20, 1978 in Bacolod City, childless, leaving his
widow, Partenza Lucerna, as his only surviving compulsory heir. He also left a win
dated May 18, 1976, which was admitted to probate on September 30, 1980 in Special
Proceedings No. 13994 of the Court of First Instance of Negros Occidental. Among the
assets listed in his will were lots Nos. 837, 838 and 839 of the Sagay Cadastre,
admittedly his private capital. However, at the time of his death, these lots were no

22
longer owned by him, he having donated them the year before (on August 2, 1977) to
the Tupas Foundation, Inc., which had thereafter obtained title to said lots.

Claiming that said donation had left her practically destitute of any inheritance, Tupas'
widow brought suit against Tupas Foundation, Inc. in the same Court of First Instance
of Negros Occidental (docketed as Civil Case No. 16089) to have the donation
declared inofficious insofar as it prejudiced her legitime, therefore reducible " ... by one-
half or such proportion as ... (might be deemed) justified ... and " ... the resulting
deduction ... " restored and conveyed or delivered to her. The complaint also prayed
for attorney's fees and such other relief as might be proper.

The Trial Court did not see things her way. Upon the facts above stated, on which the
parties stipulated, 1 said Court dismissed the complaint for lack of merit, rejecting her
claim on several grounds, viz.:

... (1) Article 900 relied upon by plaintiff is not applicable because the
properties which were disposed of by way of donation one year before the
death of Epifanio Tupas were no longer part of his hereditary estate at the
time of his death on August 20, 1978; (2) the donation properties were
Epifanio's capital or separate estate; and (3) Tupas Foundation, Inc. being
a stranger and not a compulsory heir, the donation inter vivos made in its
favor was not subject to collation under Art. 106 1, C.C.2

The Trial Court is in error on all counts and must be reversed.

A person's prerogative to make donations is subject to certain limitations, one of which

is that he cannot give by donation more than he can give by will (Art. 752, Civil
Code). 3 If he does, so much of what is donated as exceeds what he can give by will is
deemed inofficious and the donation is reducible to the extent of such excess, though
without prejudice to its taking effect in the donor's lifetime or the donee's appropriating
the fruits of the thing donated (Art. 771, Civil Code). Such a donation is, moreover,
collationable that is, its value is imputable into the hereditary estate of the donor at the
tune of his death for the purpose of determining the legitime of the forced or
compulsory heirs and the freely disposable portion of the estate. This is true as well of
donations to strangers as of gifts to compulsory heirs, although the language of Article
1061 of the Civil Code would seem to limit collation to the latter class of donations. And
this has been held to be a long-established rule in Liguez vs. Honorable Court of
Appeals, et al., 4 where this Court said:

... Hence, the forced heirs are entitled to have the donation set aside in so
far as inofficious: i.e., in excess of the portion of free disposal (Civil Code of
1889, Articles 636, 645), computed as provided in Articles 818 and 819,
and bearing in mind that collationable gifts' under Article 818 should include
gifts made not only in favor of the forced heirs, but even those made in
favor of strangers, as decided by the Supreme Court of Spain in its
decision of 4 May 1899 and 16 June 1902. So that in computing the
legitimes, the value of the property donated to herein appellant, Conchita
Liguez, should be considered part of the donor's estate. Once again, only
the court of origin has the requisite data to determine whether the donation
is inofficious or not. 5
23
The fact, therefore, that the donated property no longer actually formed part of the
estate of the donor at the time of his death cannot be asserted to prevent its being
brought to collation. Indeed, it is an obvious proposition that collation contemplates and
particularly applies to gifts inter vivos. 6 The further fact that the lots donated were
admittedly capital or separate property of the donor is of no moment, because a claim
of inofficiousness does not assert that the donor gave what was not his, but that he
gave more than what was within his power to give.

Since it is clear that the questioned donation is collationable and that, having been
made to a stranger (to the donor) it is, by law 7 chargeable to the freely disposable
portion of the donor's estate, to be reduced insofar as inofficious, i.e., it exceeds said
portion and thus impairs the legitime of the compulsory heirs, in order to find out
whether it is inofficious or not, recourse must be had to the rules established by the
Civil Code for the determination of the legitime and, by extension, of the disposable
portion. These rules are set forth in Articles 908, 909 and 910 of the Code, on the basis
of which the following step-by-step procedure has been correctly outlined:

(1) determination of the value of the property which remains at the time of
the testator's death;

(2) determination of the obligations, debts, and charges which have to be

paid out or deducted from the value of the property thus left;

(3) the determination of the difference between the assets and the
liabilities, giving rise to the hereditary estate;

(4) the addition to the net value thus found, of the value, at the time they
were made, of donations subject to collation; and

(5) the determination of the amount of the legitimes by getting from the total
thus found the portion that the law provides as the legitime of each
respective compulsory heir.8

Deducting the legitimes from the net value of the hereditary estate leaves the freely
disposable portion by which the donation in question here must be measured. If the
value of the donation at the time it was made does not exceed that difference, then it
must be allowed to stand. But if it does, the donation is inofficious as to the excess and
must be reduced by the amount of said excess. In this case, if any excess be shown, it
shall be returned or reverted to the petitioner-appellant as the sole compulsory heir of
the deceased Epifanio R. Tupas.

For obvious reasons, this determination cannot now be made, as it requires

appreciation of data not before this Court and may necessitate the production of
evidence in the Court a quo.

WHEREFORE, the appealed decision is reversed and petitioner-appellant Partenza

Lucerna Vda. de Tupas is adjudged entitled to so much of the donated property in
question, as may be found in excess of the freely disposable portion of the estate of
Epifanio B. Tupas, determined in the manner above-indicated. Let the case be

24
remanded to the Trial Court for further appropriate proceedings in accordance with this
decision.

SO ORDERED.

521. G.R. No. L-3605 April 21, 1952

TESTATE ESTATE OF THE LATE BALDOMERO J. LESACA. CONSUELO F.

LESACA AND JUANA F. LESACA,executrices-appellants,
vs.
JUANA FELIX VDA. DE LESACA, claimant-appellee.

REYES, J.:

There are three appeals registered in this case all of which have been certified to this
Court by the Court of Appeals for the reason that, in its opinion and as admitted by the
parties, they involve only questions of law. Those questions are formulated in the
certification of the Court of Appeals as follows:

1. Whether money received after marriage, as purchase price of land sold a

retrovendado before such marriage to one of the consorts, constitutes conjugal
property or not;

2. Whether allowances for support granted by the court to the minor heirs should or
should not be subject to collation and deducted from their respective hereditary
portions; and

3. Whether a standing crop of palay planted during coverture, and harvested after the
death of the one of the consorts, constitutes fruits and income within the purview of
Article 1401 of the Civil Code, and one-half of such crop should be delivered to the
surviving spouse.

Appeal No. 1

Baldomaro J. Lesaca died in the City of Manila on November 8, 1946. He was survived
by his second wife (Juana Felix), two minor children by the latter, two children by his
marriage, and three acknowledged natural children by a third woman. In his will he
named Juana F. Lesaca and Consuelo F. Lesaca, his children by his first marriage, co-
executrices.

Proceedings for the probate of the will and for the administration of the estate of the
deceased having been instituted in the Court of First Instance of Manila, that court, at
the instance of the widow but over the opposition of the co-executrices and the three
acknowledge natural children, granted each of the two minor children a monthly
allowance of P100 for the living expenses, "plus an extra sum of P300 for their
matriculation and uniforms," and later ordered the co-executrices to deposit in court all
the allowances in arrears. The co-executrices refused to make the deposit, contending
that if any amount were to be paid for the support and education of the minors the
same should be charged against their share of the inheritance. But the court took a
different view and issued an order, dated March 11, 1949, holding that the amounts it
had authorized to be paid to the minors should be considered allowances for support,
25
to be deducted from hereditary portion only insofar as they exceed what they are
entitled to as fruits or income, and requiring the co-executrices to deposit in court " all
the amounts due the said minors, namely P2,955.83, if and when the financial
condition of this estate under administration so warrants." This is the order involved in
the first appeal and the question presented is whether the allowances for support
granted by the court to legitimate minor children of the deceased pending liquidation of
his estate are subject to collation and deductible from their share of the inheritance.

Obviously, the answer should be the affirmative in view of Article 1430 of the Civil
Code of 1898 (re-enacted as Article 188 of the new Civil Code) which provides that
"the surviving spouse and his or her children shall be given an allowance for their
support out of the general estate, pending the liquidation of the inventoried estate, and
until their share has been delivered to them, but it shall be deducted from their portion
insofar as it exceeds what they may have been entitled to as fruits or income."

Counsel for the appellant minors, however, contends that Art. 1430 should be
harmonized with Art. 1041, which provides that "allowances for support, education,
attendance and illness, even though unusually expensive, apprenticeship, ordinary
equipment, or customary presents are not subject to collation," because the
allowances mentioned in the later article refer to no other than the allowances for
support given to the children of a deceased person. This contention is without merit.
Article 1041 is found under the section on "Collation," which refers only to property or
rights received by donation or gratuitous title "during the lifetime of the decedent." (Civil
Law by Padilla, Vol. I, p. 1125), and is based on the philosophy that such donations in
no way impoverish the donor or in reach the donee since ordinarily they are not taken
from the capital but rather from the fruits thereof which would anyway have been
consumed or spent during the life of the donor and therefor would form no part of his
inheritance. (7 Manresa, 5th ed., p. 625.) But allowances given to the heirs pending the
liquidation of the estate of the decedent stand on a different footing. As Manresa
observes:

Despues de la muerte del cuasante todo varia: los frutos del capital se agrarian a
este, formando parte del mismo, y por esto se deben a la herencia, ya
provengan de las cosas donadas sujetas a colacion, o de derechos de disfrute,
ya constituyesen el objeto mismo de la liberalidad, como en case de renta o
pension, cesion de productos o frutos, perdon de intereses, etc. (7 Manresa 5th
ed. p. 576.)

Appeal No. 2

This appeal is taken by the co-executrices from another order of March 11, 1949,
declaring that the sum of P2,500 received by them as repurchase price of land bought
by the deceased before the marriage is conjugal property and directing that one-half of
said sum be paid to the widow.

It appears that the deceased and his widow, Juana Felix, had lived together maritally
since 1924 but were not married until December 18, 1945; that is, less than a year
before his death; that in 1930 Ramon Garcia conveyed to the deceased three parcels
of land for P2,500 under a pacto de retro sale; and that on September 25, 1947 the co-
executrices, with the approval of the court, reconveyed the said parcels of land to
26
Ramon Garcia for the same sum of P2,500. Claiming that this sum was conjugal
property the widow petitioned the court to order the co-executrices to give her one-half
thereof. The co-executrices opposed the petition, claiming that the money paid to
Ramon Garcia for the land in question came from the products of the property left by
their mother. But after hearing, the court granted the petition in an order dated March
11, 1949, holding that the sum in dispute was conjugal property, "considering that the
reconveyance was affected after the marriage." This order is the subject of appeal No.
2, which presents the first of the three questions stated in the beginning, to wit:

Whether money received after marriage, as purchase price of land sold a

retrovendendo before such marriage to one of the consorts, constitutes conjugal
property or not.

In our opinion the question calls for a negative answer. According to the briefs Garcia
sold the land for P2,500 to Lesaca before the latter's marriage to Juana Felix and
repurchased it to for the same amount after said marriage. If the money paid by Lesaca
was his own exclusively, surely the mere fact that it was returned or repaid after
marriage cannot convert it to conjugal property. It is true that under Art. 1401 of the
Civil Code of 1889 property obtained by the industry, wages or work of the spouses or
of either of them belongs to the conjugal partnership. But the article refers to the
property obtained during the marriage, and while counsel for the widow cites the case
of Marata vs. Dionio (G.R. No. 24449, unreported) wherein this Court held that though
there is no technical marital partnership between person living maritally without being
lawfully married, nevertheless there is between them an informal civil partnership which
would entitle the parties to an equal interest in property acquired by their joint efforts, in
the present case there is no showing that the sum paid to Garcia was earned by the
joint efforts of the deceased and his widow. In the absence of such proof the sum must
be deemed to have been the property of the deceased to whom the land for which it
was given in payment was sold by Garcia. It follows that the order below adjudging
one-half of the sum in question to the widow is erroneous.

But the claim that the sum in question belongs to the co-executrices as an inheritance
from their deceased mother has not been upheld by the trial court, and as a question of
fact cannot be urged in this appeal, which, with the conformity of the parties, has been
submitted to this Court as involving questions purely of law. Moreover, as stated in the
resolution of the Court of Appeals, dated October 28, 1949, the Clerk of Court of First
Instance certifies that no evidence has been submitted or taken in connection with the
motions that gave rise to the present appeals.

Appeal No. 3

This is an appeal from the order of April 29, 1949, which declares that the 1,040
cavans of palay of the value of P20,800 received as rent on decedent's land for the
agricultural year 1946-1947 should be considered conjugal property so that one-half
thereof should go to the widow.

It is admitted that the deceased did not cultivate his land personally but had it
cultivated by one who gave him a certain percentage of the crop every year by way of
rent, and the lower court found that the 1,040 cavans of palay in dispute was the rent
or the decedent's share of the harvest from palay planted in June or July 1946 — that
27
is, after his marriage to Juana Felix — and which must have already matured or been
near maturity at the time when the conjugal partnership was dissolved by the death of
the deceased in November, 1946. Under Article 1380 of the old Civil Code "after the
marriage has been dissolved, the uncollected fruits or rents shall be divided pro
rata between the surviving spouse and the heirs of the deceased in accordance of the
rules which govern in case of termination of usufruct," the conjugal partnership being
considered usufructuary of the private property of each spouse. As rents are civil fruits
(Art. 355, old Civil Code) they must be deemed to accrue from day to day and belong
to the usufructuary (in this case the conjugal partnership) in proportion to the time the
usufruct may last. (Art. 474, old Civil Code.)

We gather from the findings of the trial court that the decedent's participation (as rent)
in the palay planted by the lessee in June or July and which must have been harvested
on the following November, if not before, accrued during coverture. Such being the
case it should belong to the conjugal partnership. It is immaterial that the rent was
actually received after the dissolution of the marriage through the death of one of the
spouses. It is the date of accrual that is important. As Manresa says:

Los frutos civiles se entiende devangados dia por dia; la regla en ellos no
pueden ser mas sencilla. Importa poco la epoca en que se realice el pago. Si se
percibieron adelantados, el conyuge propietario debe ala sociedad cuanto a esta
correspanda, o sea, los devengados desde el de la celebracion del matrimonio.
Si las rentas, interes, productos o utiladades se perciben o cobran despues, la
sociedad debe al propietario la perte proporcional correspondiente hasta el dia
de la union. (9 Manresa, 5th ed., 508.)

. . . En lo relativo al usufracto, esa regla se contiene en el art. 474: los futos

civiles se entienden percibidos dia por dia y pertenecen al usufructuario en
proporcion al tiempo que dure el usufructo. (4 Manresa, 5th ed., 346-347.)

To the same effect is the following comment on the corresponding provision of the
french civil code:

3.º. El modo de adquisicion de los frutos por la comunidad difiere segun de trato
de frutos naturales o civiles; los primeros se adquiren po su percepcion, los
segundos dia a lia. La distribucion de los frutos civelies por tanto debera hacerse
sin tomar en consideracion el momento en que hayan sido efectivamente
percibidos ni aun, si se trata de alqueleres de fincas rusticas o urbanas el
momento enque han vencido: solo hay que atenerse a la epoca a que
corresponde.

xxx xxx xxx

Asi, frecuentemente ocurre que los alquileres solamente son pagaderos el ano
siguinte al de la cosecha y aveces en various plazos. Es indudable que, si la
communidad queda disuelta antes del vencimiento, tendra derecho a la totalidad
o aparte del alquiler de la finca, en proporcion al tiempo que acquella existio en
el ano dela cosecha. Asimismo, si los alquileres han sido percibidos por
anticipado, antes del matrimonio, la communidad tiene derecho a una
compensacion si esos alquileres son correspondientes a una epoca posterior al
28
 matrimonio: infra, titulo III, comunidad de gananciales. Contra Req., mayo 27,
1879, D. I. 297, s. 80, 1, 393." (Planiol and Ripert, Tratado Practico de Derecho
Civil Frances, vol. 8 p.306 [Spanish translation by Diaz Cruz]).

It follows from the foregoing that the order appealed from is in accordance with the law
and should therefore be affirmed.

Wherefore, it is the decision of this Court that —

(1) The order of March 11, 1949, declaring that the allowances granted the minors
pending liquidation of the estate should be deducted form their hereditary shares in so
far as they exceed what they may be entitled to as fruits or income, is affirmed;

(2) The other order of March 11, 1949, declaring the sum of P2,500 received by the co-
executrices from Ramon Garcia as repurchase price of the three parcels of land resold
to the latters is conjugal property and that the widow is entitled to one-half thereof is
reversed and the said sum is declared to be part of the estate of the deceased;

(3) The order of April 28, 1949, declaring that the decedents share of standing crop of
palay planted during the coverture and harvested after the dissolution of the marriage
are fruits and income within the purview of Article 1401 of the Civil Code and,
therefore, should be considered conjugal property, of which one-half should be
delivered to Juana F. Vda. de Lesaca, is affirmed.

Without pronouncement as to costs.

522. C.A. No. 299 March 18, 1946

FELIX ADAN, plaintiff-appellant,

vs.
AGAPITO CASILI and VICTORIA ADAN, defendants-appellees.

OZAETA, J.:

The plaintiff Felix Adan commenced this action in the Court of First Instance of
Camarines Sur against his sister Victoria Adan and the latter's husband, Agapito Casili,
to secure the judicial partition of the estate left by their deceased mother, Simplicia
Nepomuceno, alleged to consist of six parcels of land which are specifically described
in the complaint. Parcels 1 and 3, however, were subsequently discarded, the first
having been sold by the parties to the municipality of Libmanan, Camarines Sur, and
the second being admittedly the property of Maria Adan, a half sister of the parties
litigant. The remaining four parcels, referred to in the record as lots Nos. 2, 4, 5, and 6,
are valued by both parties at P2,783.55.

The defendants interposed the following defense: That the four lots in question were
ceded by the deceased Simplicia Nepomuceno to her daughter Victoria Adan as her
share of the inheritance; and that the plaintiff has received more than his share
consisting of money, livestock, palay, and real property, namely:

29
 Expenses of the plaintiff as a student from
1918 to 1925 P8,000.00
Twelve carabaos received by the plaintiff
from his mother, at P30 each 9;360.00
Three hundred cavans of palay, at P4.20 a
cavan 1,260.00
Cash taken by the plaintiff from his mother
in 1927 1,110.00
Two parcels of land bought by the plaintiff
with money he received from his mother 1,220.00

The trial court found that the alleged donation by the deceased Simplicia Nepomuceno
of the four parcels of land in question had not been duly proven, there being no written
document to support it, and that therefore the said four parcels of land should be
brought into collation. It also found that the alleged receipt by the plaintiff from his
mother of P1,110 in cash and of P1,220 with which the plaintiff purchased the two
parcels of land mentioned in defendants' answer, had not been satisfactorily proven.

It found, however, that the plaintiff received from his mother during her lifetime various
sums aggregating P3,000 for his expenses while studying surveying in Manila, one-half
of which, or P1,500, should be brought into collation; that he also received or took from
his mother twelve carabaos worth P30 a head, or P360, and 300 cavans of palay at
P4.20 a cavan, or P1,260, all of which amounted to P3,120 — more than the value of
the four parcels of land now in the possession of the defendants. Hence it absolved the
defendants from the complaint without any finding as to costs.

The plaintiff appealed from the judgment of the trial court and makes the following
assignment of errors:

1. The lower court erred finding that it has been, sufficiently and satisfactorily
proven (a) that the plaintiff and appellant took from the deceased Simplicia
Nepomuceno three hundred (300) cavans of palay worth P4.20 a cavan; (b) that
plaintiff and appellant appropriated to himself twelve carabaos belonging to said
deceased the price of which is P30 per head; and (c) that plaintiff and appellant
received the amount of three thousand pesos (P3,000) to support his studies in
Manila as surveyor from 1918 to 1926.

2. The lower court erred in not giving any credit to the testimony of the witness
for the plaintiff and appellant concerning the fruits or produce of one of the
parcels, described as lot No. 4, of the estate in question.

3. The lower court erred in not declaring that the parcel described as lot No. 4
produced eight hundred (800) cavans of palay yearly.

4. The lower court erred in not including in its computation of the distributable
inheritance the fruits or produce of lot No. 4 of the estate in question from the
death of the deceased Simplicia Nepomuceno until the date of this suit.
30
 5. The lower court erred in its determination of the hereditary estate divisible
between the plaintiff and appellant and the defendants and appellees herein.

We find the record that the plaintiff and appellant did not prove his contentions. He was
supposed to know the facts of his case better than anybody else, and yet he did not
testify in his own behalf. The only witness who testified in chief for the plaintiff was his
own lawyer, Cesareo Fabricante, who limited himself to presenting copies of the tax
declarations covering the parcels of land in question and to testifying as to the annual
produce of No. 4, which he claimed was 800 cavans of palay a year.

On the other hand, the defendant spouses both testified in their own behalf, and in
addition to their testimony they called another witness named Sisenando Inocencio to
corroborate their declaration regarding the appropriation by the plaintiff of twelve
carabaos belonging to his deceased mother and of which the said witness was the
caretaker.

We find no competent evidence in the record to disprove or impeach the testimony of

the defendants to the effect that the plaintiff took and received from his mother during
the latter's lifetime P1,110 in cash and 300 cavans of palay in the manner and under
the circumstances narrated by the defendant spouses as witnesses in their own behalf.
The 300 cavans of palay was taken by the plaintiff from the granary of his mother in
1927. The cash consisting of twenty-peso and five-peso bills and amounting in all to
P1,110 was taken by the plaintiff from his mother's trunk on an occasion when she
suffered a collapse and when the plaintiff took some money from the same trunk with
which to pay for injections. As we have said, the plaintiff did not testify to deny the
testimony of the defendants. It is admitted in the brief for the plaintiff and appellant that
the latter took 300 cavans of palay from his mother's granary, but it is claimed that said
palay belonged to him. In the absence of plaintiff's testimony to support such claim,
there is no basis upon which to sustain it. It was also proved during the trial that the
plaintiff took possession of twelve carabaos belonging to his mother and that the value
of said animals was P30 a head.

It was also established during the trial that the plaintiff studied surveying in Manila and
that during his studies his mother and sister sent him money for his support and
expenses, amounting to approximately P500 a year. Although the defendants claim
that his studies lasted from 1918 to 1925, we sustain the contention of the plaintiff and
appellant in his brief that it took him only two years to finish the course of surveying,
because it is a matter of common knowledge that surveying is a two-year course, and it
is probable that the rest of the time was spent by him in acquiring a high-school
education.

Under the article 1041 of the Civil Code, allowances for support, education, attendance
in illnesses, even though unusually expensive, apprenticeship, ordinary equipment, or
customary presents are not subject to collation. But article 1042 of the same Code
provides that expenses which may have been incurred by the parents in giving their
children a professional or artistic career shall not be brought to collation unless the
parent so orders or they encroach upon the legitimate. It also provides that in cases in
which it is proper to collate them, the money which the child would have spent if it had
lived in the house and company of its parents shall be deducted therefrom. Since the
career of surveyor is a professional one, and since the expenses incurred by plaintiff's
31
mother in giving him that career encroached upon the legitimate, it is proper to collate
one-half of the amount spent by her for him during the two years he studied surveying,
the other half being considered as the amount which the plaintiff would have spent if he
had lived in the house and company of his mother.

The claim of the plaintiff that parcel No. 4 described in the complaint produced 800
cavans of palay a year which he contends should form part of the estate, has not been
established by competent evidence. The plaintiff claims that at the rate of 800 cavans a
year parcel No. 4 produced from 1938 to 1943 a total of 3,200 cavans, which at P2.50
a cavan amounted to P8,000. Such claim seems to us highly exaggerated, considering
that the value of said lot No. 4, as alleged by the plaintiff himself, was only P693.55. It
seems to us unbelievable that a piece of land worth less than P700 could produce a
net income of P8,000 in five years.

The unfair exaggeration in which plaintiff and appellant indulges may be further noted
from the fact that while he in his brief appraises the 300 cavans of palay taken by him
at P1.50 a cavan, he values the 3,200 cavans of palay which he claims was produced
by lot No. 4 at P2.50 a cavan.

On the other hand, we find that the price of P4.20 a cavan claimed by the defendants
for the 300 cavans of palay was also exaggerated. We accept the testimony of Pedro
Fabricante, a rebuttal witness for the plaintiff, to the effect that in 1928 the price of
palay in Libmanan oscillated from P1.20 to P2.20 a cavan, depending upon the season
of the year in which the grain was sold. Since the plaintiff himself claimed that the price
of palay in Libmanan was P2.50 a cavan, we accept the maximum price given by the
witness Fabricante, to wit, P2.20, as the most reasonable. Summarizing the evidence,
we find that the plaintiff has received from the estate of his mother the following:

Cash P1,110.00
Twelve carabaos, at P30 a head 9;360.00
Three hundred cavans of palay, at
P2.20 a cavan 660.00
Amount spent by the plaintiff's mother to
give him a professional career, to wit,
P1,000, of which one-half is
collationable 500.00
Total P2,630.00

The defendant Victoria Adan, on the other hand, received from her deceased mother
the four parcels of land in question, the agreed value of which is P2,783.55. It was
proven during the trial that she spent P300 for the funeral of the deceased, and
deducting that sum from the value of the property she received would leave only
P2,483.55 as her net share, which is less than that received by the plaintiff.

Whatever produce the defendants may have obtained from the four parcels of land
received by them must have been compensated more or less by the fruit or interest of
the money and other property received by the plaintiff.
32
It will be noted that, by a different process of reasoning, based upon our own
independent study of the evidence, we arrive at the same result as that reached by the
trial court, namely, that the plaintiff is not entitled to the relief he seeks.

The judgment is affirmed, with costs.

523. G.R. No. L-23035 October 13, 1925

In re will of Ignacio Abuton y Poncol, deceased.

TEODORA GUINGUING, petitioner-appellee,
vs.
AGAPITO ABUTON and CALIXTO ABUTON, opponents-appellants.

STREET, J.:

In the course of the administration of the estate of Ignacio Abuton, deceased, resident
of Oroquieta, Province of Misamis, it appeared that the deceased died testate on
March 8, 1916, leaving two sets of children by two different wives, the first of whom
was Dionisia Olarte, who died about twenty years ago, and by whom the deceased had
twelve, children, three of whom died without issue. The second wife was Teodora
Guinguing, to whom the testator was married on July 14, 1906, and by whom he had
four children, all still living. A will of the testator, executed on November 25, 1914, was
probated in court and allowed on October 9, 1917 (Exhibit A); and one Gabriel Binaoro
was appointed administrator. In due course of proceeding Binaoro submitted to the
court an inventory of the properties belonging to the deceased at the time of his death.
In this inventory he included only the lands which the testator had devised to the
children of the second marriage, omitting other lands possessed by him at the time of
his death and which were claimed by the children of the first marriage as having been
derived from their mother. Accordingly, on March 14, 1922, Teodoro Guinguing, in
representation of herself and her four minor children, presented a motion in court,
asking that the administrator be required to amend his inventory and to include therein
all property pertaining to the conjugal partnership of Ignacio Abuton and Dionisia
Olarte, including property actually in the hands of his children by her which (the motion
alleged) had been delivered to said children as an advancement. The purpose of the
motion was to force the first set of children to bring into collation the properties that had
been received by them, in conformity with article 1035 of the Civil Code; and the
motion was based partly on the supposition that Ignacio Abuton had never in fact
effected a liquidation of the conjugal property pertaining to himself and Dionisia Olarte.
This motion was formally opposed by two of the children of the first marriage, namely,
Agapito and Calixto Abuton y Olarte.

Upon hearing the proof the trial judge found that no property had been acquired by the
testator during his second marriage and that the administration was concerned only
with property that had been acquired before the death of the first wife. The trial judge
further found that after the death of the first wife the testator had liquidated the ganacial
estate pertaining to them and had divided among the first set of children all of the
property that pertained to the first wife in the division, with the exception of the home-
place in the poblacion, in which the testator had continued to reside till death. The
share pertaining to the testator in said division was, so the court found, retained in his
own hands; and this property constituted the proper subject matter of the present
33
administration proceedings. Accordingly an order was entered to the effect that the
administrator should include in the inventory of the estate of Agapito Abuton all of the
property of which the testator was possessed at the time of his death. From this order
the two opponents of the motion appealed.

We entertain serious doubts as to whether the order in question here was really such a
final order as to be appealable under section 783 of the Code of Civil Procedure, since
the making of the inventory is necessarily of a preliminary and provisional nature, and
the improper inclusion of property therein or the improper omission of property
therefrom is not absolutely decisive of the rights of persons in interest. But, passing this
point without decision, we proceed to consider whether there is any merit in the errors
assigned to the order which is the subject of the appeal. 1awph!l.net

The contention made in the first assignment of error, to the effect that an order of the
character of that appealed from cannot be made by a court without formal notice being
given to all persons in interest, in the same manner as if a new action had been begun,
is clearly untenable, since all the heirs are already virtually represented in the
administration and are bound by all proper orders made therein, so far and so far only
as such orders have legal effect. This is not inconsistent with the proposition that
contested claims of ownership between the administrator and third persons should be
tried in separate proceedings, which is entirely true. The question here is merely
between some of the heirs and the administrator, as representative of all persons in
interest. Besides, it should be pointed out, the inclusion of a property in the inventory
does not deprive the occupant of possession; and if it is finally determined that the
property has been properly included in the estate, the occupant heir is liable for the
fruits and interest only from the date when the succession was opened (art. 1049, Civ.
Code). The provisions of the Civil Code with reference to collation clearly contemplate
that disputes between heirs with respect to the obligation to collate may be determined
in the course of the administration proceedings.

The second and third assignments are directed to the supposed errors of the court in
having based its findings as to the property belonging to the estate of Agapito Abuton
in part upon the recitals of his legalized will (Exhibit A) and in part upon the recitals of a
previous will (Exhibit 1), which had been superseded by the last. This older will
appears to have been produced by the representatives of the first set of children in the
proceedings for the probate of the will which was admitted, and was attached to
that expediente. It is said in appellants' brief that this document was not introduced in
evidence at the hearing of the present controversy.

It was not error, in our opinion, for the trial court to look to the recitals of the legalized
will for the purpose of determining prima facie whether a certain piece of property
should or should not be included in the inventory, without prejudice of course to any
person who may have an adverse title to dispute the point of ownership. The use made
of the superseded will (Exhibit 1) in the appealed order is of more questionable
propriety, but we are of the opinion that the facts stated by the court can be sufficiently
made out from the other evidence submitted at the hearing.

As we gather from the record, the crux of the controversy consists in the fact that
among the properties remaining in possession of Ignacio Abuton at the time of his
death was a piece of land covered by a composition title No. 11658, issued in 1894 in
34
the name of Dionisia Olarte. At the same time that this title was issued, Agapito Abuton
procured two other titles, Nos. 11651 and 11654, covering adjacent properties to be
issued in his own name. From the circumstance that title No. 11658 was issued in the
name of Dionisia Olarte the opponents appear to believe that this land was her
particular property and should now vest exclusively in her heirs. This conclusion is
erroneous. There is nothing to show that the land covered by title No. 11658 was not
acquired by the spouses during their marriage, and the circumstance that the title was
taken in the name of the wife does not defeat its presumed character as ganacial
property. Therefore, in liquidating the ganacial property of the first marriage it was
within the power of the surviving husband to assign other property to the first set of
children as their participation in the estate of their mother and to retain in his own
hands the property for which a composition title had been issued in the name of the
wife.

Upon the whole we are unable to discover any reversible error in the appealed order,
and the same is accordingly affirmed, with costs. So ordered.

524. G.R. No. L-39696 February 8, 1934

MARIA GUERRERO, ET AL., plaintiffs-appellees,

vs.
JOSE DE LA CUESTA, CRISTINA MINA, ET AL., defendants-appellants.

GODDARD, J.:.

The principal issue in this case, the only one of importance raised by appellants, is,
does the filing of a motion for reconsideration within thirty days after notice of a
decision, rendered by a Court of First Instance, prevent that decision from becoming
final in case no action is taken thereon before the expiration of thirty days, when such
motion is based on any of the causes, materially affecting the legitimate rights of the
petitioner, appearing in section 145 of the Code of Civil Procedure?

The herein plaintiffs and defendants are relatives, all being direct descendants of the
spouses Hilarion de la Cuesta and Valentina Zumel both of whom died intestate,
Hilarion in 1873 and Valentina in 1921. The original complaint in this case filed July 24,
1923 was for the partition of 199 parcels of land. On March 19, 1925, the herein parties
presented for approval of the court an agreement of partition of 185 of the parcels in
litigation. The remaining 14 parcels described in the amended complaint, filed July 5,
1932, were not included in said agreement due to irreconcilable differences arising
among the parties. In this amended complaint the plaintiffs pray that the remaining 14
parcels of land be divided among all the parties herein in the same proportion and
manner adopted in the partition agreement above-mentioned; that that agreement be
approved and that defendants be ordered to turn over to plaintiffs the products of these
14 parcels, or in lieu thereof that they be ordered to pay plaintiffs the sum of P10,920.

In the original decision of the trial court, which is dated August 24, 1932, it was held
that the defendant Jose de la Cuesta, who had received, by way of gift from his mother
Valentina Zumel, parcels 2, 3, 4, 5 and 6 of the amended complaint, should collate said
parcels, and not their value at the time of the gift, for the of the purpose of the partition
among all of the parties.
35
The defendant Jose de la Cuesta was notified of this decision August 29, 1932, and on
September 9, 1932 he filed the following motion:

Comes now the defendant Jose de la Cuesta, through the undersigned attorney
and to this Honorable Court respectfully prays for the reconsideration of that part
of the decision which disposes that parcels 2, 3, 4, 5 and 6 in the above entitled
case be distributed into four equal parts.

That this Honorable Court likewise modify that part of the decision giving three
months’ time within which the parties may submit a project of repartition of the
five above-mentioned parcels.

This reconsideration is requested in view of the following reasons:

Article 1045 of the Civil Code provides:

"The same things bestowed as a gift or given in dowry need not be brought to
collation and division, but only their value at the time of the gift or dowry, even
though they should not have been appraised at the time.

"Their subsequent increase or decrease in value and even their total loss or
destruction, whether casual or intentional, shall be for the account and risk or for
the benefit of the donee."

The above provisions of the Civil Code together with the commentaries of
Manresa are very clear on the point: that the donee can in no case be compelled
to collate the same things donated in view of the fact that what was really
donated at the time was only their value. What Manresa really says is that in the
French Civil Code the coheir may demand not only the fictitious but also the
material collation of real property. But in this jurisdiction the project of the Civil
Code in 1851 in its article 887 and finally embodied in article 1045 of the present
Civil Code radically departed from this viewpoint and made it simpler in the sense
that whether the property donated is real or personal there shall be only fictitious
collation.

In view of the foregoing, it is respectfully prayed that the decision be

reconsidered accordingly.

All of the parties were duly notified of the hearing of this order:

On October 20, 1932, the trial court dictated the following order:

Se pide por el demandado Jose de la Cuesta en su mocion registrada en 9 de

septiembre ultimo, por medio de su abogado, la reconsideracion y modificacion
de la parte de la decision recaida en esta causa, que ordena la particion de las
parcelas de terreno 2a., 3a., 4a., 5a, y 6a. descritas en la demanda enmendada
entre las partes, en el sentido de que el valor de las citadas parcelas al tiempo
de su donacion sea el que debe traerse a colacion, y repartirse entre las partes,
en vez de las mismas parcelas segun dispone el articulo 1045 del Codigo Civil.

36
 El Juzgado, vista la mocion no halla terminos habiles para modificar su decision
en el sentido que se pide, sin ordenar nueva vista, porque en autos no hay
ninguna prueba que demuestre el valor de los terrenos en cuestion al tiempo de
su donacion al demandado Jose de la Cuesta porque la cuetion del valor de los
mismos no se ha suscitado en los escritos de alegaciones.

Para que puedan cumplirse las disposiciones del articulo 1045 del Codigo Civil,
por el presente se ordena que se deje sin efecto la decision y sentencia recaida
en esta causa y que se celebre nueva vista para que las partes presenten
pruebas sobre el valor de los citados bienes, y para ello se señala el 2 de
noviembre, 1932, a las 8 a.m. Asi se ordena.

The plaintiffs and the other defendants noted their exceptions to this order.

On November 2, 1932, all of the herein parties filed an agreement in writing to the
effect the value of parcels 2, 3, 4, 5 and 6 was P350, Philippine currency, in 1900, the
year Jose de la Cuesta received these parcels from his mother.

On November 11, 1932, the trial court, in what is termed a "Decision Adicional" held
that, under article 1045 of the Civil Code, the five parcels of land in question need not
be brought to collation and division; but that Jose de la Cuesta should pay to the
persons, indicated therein, their respective portions of P350, the value of these parcels
at the time of the gift. With this modification the original decision was approved.

The plaintiffs did not appeal from this decision, but the other defendants noted an
exception and moved for a new trial. This motion was denied; an exception to the order
of denial was noted and a notice of appeal was given. A bill of exceptions was
presented in due time and approved by the trial court.

The appellants allege, in their brief, that the trial court committed the following errors:

El Juzgado inferior erro:

1.º Al no resolver la peticion de los demandados de apellido Mina, presentada el

19 de octubre de 1932 (P. de E. pag., 17), para que se ejecute la sentencia y se
nombren comisionados repartidores.

2.º Al dictar su auto de fecha 20 de oetubre de 1932, estimando la mocion de

reconsideracion presentada por el demandado Jose de la Cuesta y disponiendo
con arreglo a dicha mocion que se reciban pruebas sobre el valor de los
terrenos, dejando sin efecto con tal motivo su decision, cuando esta ya habia
quedado firme e irrevocable

3.º Al dictar su decision adicional de fecha 11 de noviembre de 1932.

4.º Al disponer en dicha decision adicional que se repartan, no los mismos

terrenos como se ha dispuesto en la decision original, sino su valor.

5.º Al denegar la mocion de nueva vista presentada por los demandados de

apellido Mina.

37
The position of the appellants is, in substance, to the effect that although the motion for
reconsideration was filed on September 9, 1932, eleven days after Jose de la Cuesta
received notice of the original decision, that from that date to October 20, 1932, the
date the court acted favorably on said motion, forty-one (41) days had elapsed and
therefore the original decision had become final and that the trial court had lost all
control over said decision.

The pertinent parts of section 145 of the Code of Civil Procedure read as follows:

New Trial. — Within thirty days after notice of a decision rendered by a court of
First Instance, the judge thereof may at the petition of the party aggrieved, and
after due notice to the adverse party, set aside the judgment and grant a new
trial, provided the petition is based on any of the following causes materially
affecting the legitimate rights of the petitioner:

xxx xxx xxx

3. Because the judge has become satisfied that excessive damages have been
awarded, or that the evidence was insufficient to justify the decision, or that it is
against the law.

It is clear that the motion for reconsideration in question is based squarely on one of
the causes mentioned in the above section, i. e., "that it is against the law". When the
trial court held that Jose de la Cuesta should collate the five parcels of land received by
him as a gift from his mother instead of their value at the time the gift was made, that
decision was clearly contrary to the provision of article 1045 of the Civil Code. The
court realizing this fact treated the motion for reconsideration as a motion for a new trial
and granted a new trial.

Para que puedan cumplirse las disposiciones del articulo 1045 del Codigo Civil,
por el presente, se ordena que se deje sin efecto la decision y sentencia recaida
en esta causa y que se celebre nueva vista para que las partes presenten
pruebas sobre el valor de los citados bienes, y para ello se señala el 2 de
noviembre, 1932, a las 8 a. m.

We conclude that the trial court did not err in granting a new trial in this case in view of
the fact that the motion for reconsideration was based upon one of the causes for
granting a new trial set forth in section 145 of the Code of Civil Procedure. Neither did
that court err in modifying its original decision, in part, in order to bring it into harmony
with the provisions of article 1045 of the Civil Code.

The fact that the trial court kept this motion under consideration until October 20, 1932,
did not result in the original decision becoming final. It was essentially a motion for a
new trial.

In view of the foregoing we find that the contention of the appellants is not well
founded.

The decision of the trial court is affirmed without costs. So ordered.

38
525. G.R. No. L-20950 December 20, 1923

AMADO WENCESLAO, ET AL., plaintiffs-appellees,

vs.
FAUSTINO CALIMON, defendant-appellant.

ROMUALDEZ, J.:

This is a case of a legal redemption sanctioned by the Court of First Instance of

Bulacan, to the effect that the defendant should resell to the plaintiffs a four-fifth part of
a parcel of land situated in the barrio of Baluarte, municipality of Bulacan, described in
the complaint.

Three principal questions are raised by the appellant in his brief, the first relating to the
period of nine days for the redemption the second to the price of the repurchase, and
the third to the capacity of the redeemers.

As to the first point, even supposing the nine days fixed by article 1524 of the Civil
Code to have expired, which is not the case, the provision applicable here is that
contained in article 1067, as the matter concerns heirs and an inheritance not yet
distributed, according to the stipulation of facts. But even considering article 1524 to be
applicable, the fact is that the plaintiffs are minors and have no legal guardian. The
period fixed in said article could not have run against them. Contra non valentem agere
non currit præscriptio. This principle is recognized in our substantive law and is
expressly enshrined by sections 42 and 45 of our Code of Civil Procedure. itc@a1f

With regard to the price, the evidence and circumstances of the case sufficiently show
that the defendant did not pay but P7,700 and a note for P5,000, the effectiveness of
which depends upon the said defendant's taking possession of the land.

The evidence does not establish that this action was brought on behalf of Anselmo
Hilario. The admission of the affidavit Exhibit A does not constitute any error. Those
who have signed it have testified in court against what they had stated in said
document (section 343, Code of Civil Procedure).

It is not obstacle to the upholding of the right of redemption that the redeemers have no
money to make the redemption. The lack of finds may render such a right inefficacious,
but does not affect its existence. The plaintiffs cannot exercise such right unless they
reimburse the purchaser with the purchase price paid by him (article 1067, Civil Code).

As to the offer to redeem made by Urbano Wenceslao on behalf of his children the
herein plaintiffs, we think it is valid. He is the natural guardian of his children whom he
represented in court and out of court. Such an offer was not an act of administration of
property but of representation of his children in their rights.

We find in the proceeding no sufficient ground for altering the judgment appealed from;
wherefore the same is hereby affirmed with the costs of this instance against the
appellant. So ordered.

39