EN BANC [G.R. No. 31703. February 13, 1930.] CARMEN G.

DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee, vs. MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila, defendantsappellants.

The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena. And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana. The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction. The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction. The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors: "1.The lower court erred in holding that a trust was created by the will of Doa Ana Maria Alcantara. "2.The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as 'herederos fidei-comisarios.' "3.The lower court erred in making the injunction permanent and condemning defendant to pay the costs." The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not in dispute. The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below: "Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same house with me, I institute her as my sole and universal heiress to the

remainder of my estate after the payment of my debts and legacies, so that upon my death and after probate of this will, and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executrix the properties composing my hereditary estate, that she may enjoy them with God's blessing and my own. "Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; and should any of these die, his share shall serve to increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible. "Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered as an indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve front he duties of administering my estate, because I recognize that his character is not adapted to management and administration." The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution. This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the death of the instituted heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI provides for the administration of the estate in case the heiress instituted should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the nature of simple substitution by the heir's death before the testator, and the fact by clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution. The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the

L.D. Lockwood and Jose M. Casal, for appellants. Eduardo Gutierrez Repide and Leoncio B. Monzon, for appellee.

SYLLABUS 1.WILLS; INSTITUTION OF HEIRS; FIDEICOMMISSARY HEIR. The institution of heirs made in the will in question is in the nature of a fideicommissum: there is an heiress primarily called to enjoy the estate; an obligation clearly imposed upon her to preserve and transmit the whole of the estate to certain third persons; and there are secondary heirs. 2.ID.; ID.; ID.; DISTINCTION BETWEEN FIDEICOMMISSUM AND TRUST. The heir instituted, or fideicommissioner, as article 783 of the Civil Code has it, is entitled to the enjoyment of the estate. The fideicommissum thus arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, and should not be confused with, the English "trust."

DECISION

ROMUALDEZ, J p:

considerations above stated, let us now see whether the instant case is a fideicommissary substitution. In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the will and approval of the report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing explicit about substitution, it does not contain anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided in the following (above quoted) clauses, which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff if the sole heiress instituted in the first instance. The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on to the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says: "Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolutions of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things: "1.A first heir called primarily to the enjoyment of the estate. "2.An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate. "3.A second heir. "To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies,

since he is to inherit from the latter and not from the fiduciary." (Emphasis ours.) It appears from this quotation that the heir instituted or the fiduciary to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused with, the English "trust." It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution. Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix; but from the whole context it appears that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the limits fixed by article 781 of the Civil Code which prescribes that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree." Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the whole estate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision complies with another of the requisites of fideicommissary substitution according to our quotation from Manresa inserted above.

1.A first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will. 2.An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case she could die after the testatrix. 3.A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI. Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator. By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara. Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs. The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered. Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur. Street, J., I reserve my vote.

Lastly, clause XI clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after the testatrix. That is, said clause anticipates the casewhere the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance. The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present in the case of substitution now under consideration, to wit:

[G.R. Nos. L-27860 & L-27896. September 30, 1975.]

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner, vs. THE HONORABLE VENICIO ESCOLIN, presiding Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents.

was likewise directed to expedite proceedings and to close the same upon the payment of the corresponding taxes due within three months from notice.

BARREDO, J p: Motion for reconsideration followed by a supplemental motion for reconsideration filed by petitioner-appellant Philippine Commercial and Industrial Bank and motion for modification filed by Joe Hodges and "the other heirs of Charles Newton Hodges" in regard to the decision of this Court of March 29, 1974. Upon consideration of said motions, the Court has not found any new matter therein sufficiently persuasive to induce a modification of its judgment, for which reason, the Court, with its members reaffirming their previous opinions and vote resolved unanimously to DENY as it hereby DENIES the motions for reconsideration and modification above referred to. Anent the motion of respondent-appellee Avelina Magno 1 the assessment of the damages she claims she and the Estate Linnie Jane Hodges have suffered by reason of the preliminary injunction in this case which was lifted per resolution of 1 Court of September 8, 1972, the Court resolved to authorize trial court to make the assessment prayed for, subject to appeal, to this Court, if necessary. Considering the substantial value of the subject estates the length of time they have already been pending judicial settlement and for the reason that the payment of the corresponding taxes thereon are being unduly delayed, and because the properties of said estates have to be disposed favor of Filipinos before May 27, 1976, the Court enjoins the parties to exert all efforts to have the inventories of said states finalized without further delay, and if possible to extrajudicially settle their remaining differences to further complications, expenses and unnecessary loss time. The respondent court is directed to expedite processing by giving due priority thereto, requiring the parties to submit the inventories within thirty days from notice hereof, and to resolve the remaining issues as delineated in the Court's decision and to close the proceedings upon payment of the corresponding taxes within three months from notice hereof. Respondent judge is further directed to report to this Court from time to time the action taken by him hereon. Castro, Acting C.J., Ferrando, Muoz Palma, Aquino and Martin, JJ., concur. Makalintal, C.J, Esguerra and Concepcion, Jr., JJ., are on leave.

SYLLABUS 1.JUDGMENT MOTION FOR RECONSIDERATION OR MODIFICATION THEREOF; DENIAL OF THE SAME WHERE NO NEW MATTERS ARE PRESENTED SUFFICIENT TO CHANGE THE PREVIOUS DECISION OF THE COURT. Where the Court, upon consideration of the motions filed in regard to a previously decided case, had not found any new matter therein sufficiently persuasive to induce a modification of its judgment, the previous decision is reaffirmed and the motions for reconsideration and for modification of its judgment are denied. TEEHANKEE, J., concurring: 1.JUDGMENTS; MOTION FOR RECONSIDERATION OR MODIFICATION THEREOF; DENIAL OF THE SAME WHERE NO NEW MATTERS ARE PRESENTED SUFFICIENT TO CHANGE THE PREVIOUS DECISION OF THE COURT; DIRECTIVE TO RESPONDENT COURT TO EXPEDITE AND TERMINATE PROCEEDINGS WITHIN THREE MONTHS SUPERSEDES PRO TANTO THE DISPOSITION IN THE ORIGINAL DECISION. The resolution's directive to respondent court to expedite and terminate the protracted proceedings within three months supersedes pro tanto the disposition in the original decision of March 29, 1974 for the segregation of the minimum one-fourth of the community properties adjudged to be the estate of Linnie Jane Hodges for delivery and to exclusive administration by respondent as her estate's administrator, with the other one-fourth to remain under the joint administration of said respondent and petitioner and Charles Newton Hodges' one-half share to be administered by petitioner exclusively as his estate's administrator, since such physical segregation and separate administration could not possibly be accomplished before the more pressing and indispensable matters of submittal of the two estates' inventories and determination by respondent court within the limited three-month period given in the Court's resolution.

[G.R. Nos. L-27936 & L-27937. September 30, 1975.] TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672) PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administrator-appellant, vs. LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA MAGNO, the last as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-appellee.

SYNOPSIS In regard to a decision decided by the Supreme Court on March 29, 1974 the following pleadings were filed before the Court: a motion for reconsideration of the decision of the petitioner-appellant, a motion for modification of the judgment by the heirs of the testator, and a motion for the assessment of damages suffered by reason of the lifting of the preliminary injunction filed by respondent-appellee Magno. The Supreme Court, not finding any new matter in the said motions sufficient to induce a modification of its judgment, reaffirmed its previous opinion, denied the first two motion, and authorized the trial court to make the assessment to the damages prayed for. Because of the length of time that the subject estates have been pending judicial settlement, the parties were enjoined to exert all efforts to have the inventories of said estates finalized and to extrajudicially settle their remaining differences. The respondent court

RESOLUTION

Separate Opinions

TEEHANKEE, J., concurring: I join in the resolution denying the motions f reconsideration for the reasons and considerations already indicated in my separate concurring and dissenting opinion of March 29, 1974. I specially welcome the resolution's directive to respondent court to expedite and terminate these long-drawn proceedings (for over 18 years now since Linnie Jane Hodges' death on May 23, 1957) and to "resolve the remaining issues as delineated in the Court's decision" and to cause the payment in the estate and inheritance taxes long overdue to the Government "within three months from notice hereof." (See pp. 19-20, writer's separate opinion). I take it that the resolution's directive to respondent court to expedite and terminate the protracted proceedings three months supersedes pro tanto the disposition original decision of March 29, 1974 for the segregation minimum one-fourth of the community properties adjudged to be the estate of Linnie Jane Hodges for delivery to and exclusive administration by respondent as her estate's administrator, with the other one-fourth to remain under the joint administration of said respondent and petitioner and Charles Newton Hodges' one-half share to be administered by petitioner exclusively as his estate's administrator, since such physical segregation and separate administration could not possibly be accomplished before the more pressing and indispensable matters of submittal of the two estates' inventories and determination by respondent court of the remaining issues are attended to by respondent court within the limited three-month period given in the Court's resolution. (See pages 7-8, writer's separate opinion). The remaining issues to be resolved by respondent court revolve on the two questions of renvoi and renunciation. In his separate opinion (at page 7 et seq.), as concurred in by the Chief Justice and Justice Makasiar and Antonio, the writer urged that these two questions should be resolved "preferentially and expeditiously" by respondent court, since aside from the time problem, these proceedings have "apparently degenerated into running battle between the administrators of the two estates to the common prejudice of all the heirs." (at page 20). Since respondent court is now again presided by still another judge in a long line of judges who have come and gone with even terminating the proceedings, and since as is clear from the decision itself, no consensus on the best means of expediting the closing of the estates was reached by a majority of the Court (see pages 8 and 10, separate opinion), I trust that those who did not concur with the "suggested guidelines" in the writer's separate

opinion (at pages 8-20) either because they were not ready to express their definite opinion thereon or because they felt that respondent court should be given a free hand, will understand that the writer now commends anew to the new judge presiding respondent court the careful reading the said suggested guidelines in the hope that they may lighten his work and help find the appropriate measures and solutions to "expedite the closing of the protracted estate proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating his resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings." (page 10, separate opinion), and thus enable him to comply timely with the Court's directive to close out the estates within three months from notice. Makasiar and Antonio, JJ., concur.

3.SUCCESSIONS; CONDITIONAL LEGACY; CONDITION CONTRARY TO LAW; NULLITY OF. If the condition imposed upon the legatee is that he respect the testator's order that his property be distributed in accordance with the laws of the Philippines and not in accordance with the laws of his nation, said condition is illegal, because, according to article 10 of the Civil Code, said laws govern his testamentary disposition, and, being illegal, shall be considered unwritten, thus making the institution unconditional.

DECISION

ROMUALDEZ, J p: [G.R. No. 22595. November 1, 1924.] "Testate Estate of Joseph G. Brimo. JUAN MICIANO, administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent-appellant. The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) the denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by Pietro Lanza of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation of article 10 of the Civil Code which, among other things, provides the following: "Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in

Ross, Lawrence & Selph for appellant. Camus & Delgado for appellee.

SYLLABUS 1.FOREIGN LAWS; PRESUMPTION. In the absence of evidence to the contrary foreign laws on a particular subject are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) 2.POSTPONEMENT OF PROCEEDING; DISCRETION. It is discretionary on the part of the court to postpone or not to postpone a particular proceeding in a case, and when the person applying for it has already been given ample opportunity to present the evidence that he wishes to introduce, the court commits no abuse of discretion in denying it.

question, whatever may be the nature of the property or the country in which it may be situated." But the fact is that the oppositor did not prove that said testamentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in the will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says: "Second. I likewise desire to state that although, by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine Islands, requesting all of my relatives to respect this wish, otherwise, I annul and

cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request." The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the Civil Code provides the following: "Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide." And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the Civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national laws. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs. So ordered. Street, Malcolm, Avancea, Villamor, and Ostrand, JJ., concur. Johnson, J., dissents.

FIRST DIVISION [G.R. No. 113725. June 29, 2000.] JOHNNY S. RABADILLA, 1 petitioner, vs. COURT OF APPEALS AND MARIA MARLENA 2 COSCOLLUELA Y BELLEZA VILLACARLOS, respondents.

Romeo S. Perez for petitioner. Benjamin Santos & Ofelia Calcetas-Santos Law Offices collaborating counsel for respondent Marlene C. Villacarlos. Garcia Ines Villacarlos Garcia and Recina Law Offices for private respondents.

SYNOPSIS Dr. Jorge Rabadilla, in a codicil of Aleja Belleza, was instituted devisee of Lot No. 1392 with an area of 511,855 square meters with the obligation to deliver 100 piculs of sugar to herein private respondent every year during the latter's lifetime. The codicil provides that the obligation is imposed not only on the instituted heir but also to his successors-in-interest and that in case of failure to deliver, private respondent shall seize the property and turn it over to the testatrix's "near descendants." Dr. Rabadilla died and was survived by his wife and children, one of whom is herein petitioner. Private respondent, alleging failure of the heirs to comply with their obligation, filed a complaint with the RTC praying for the reconveyance of the subject property to the surviving heirs of the testatrix. During the pre-trial, a compromise agreement was concluded between the parties wherein the lessee of the property assumed the delivery of 100 piculs of sugar to private respondent. However, only partial delivery was made. Thereafter, the trial court dismissed the complaint for lack of cause of action. The Court of Appeals, on appeal, reversed the decision and held that the institution of Dr. Rabadilla is in the nature of a modal institution and a cause of action in favor of private respondent arose when petitioner failed to comply with their obligation under the codicil, and in ordering the reversion of Lot 1392 to the estate of testatrix. Aggrieved, petitioner availed of this recourse.

Successional rights are transmitted from the moment of death and compulsory heirs succeed the decedent not only to all the property but also to his rights and obligations. Hence, the heirs of Dr. Rabadilla is also obliged under the codicil to deliver 100 piculs of sugar to private respondent every year. There is no substitution of heir where no substitute was provided by the testatrix in case the instituted heir predecease her or in case of the latter's incapacity or renunciation nor was the instituted heir mandated to preserve the property and to transmit it to the second heir.

4.ID.; ID.; SIMPLE SUBSTITUTIONS DIFFERENT FROM CODICIL; CASE AT BAR. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over the testatrix's near descendants. 5.ID.; ID.; FIDEICOMMISSARY SUBSTITUTION DIFFERENT FROM CODICIL; CASE AT BAR. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir. In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. 6.ID.; ID.; MODAL INSTITUTION DISTINGUISHED FROM CONDITIONAL TESTAMENTARY DISPOSITION. The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some extend, it is similar to a resolutory condition.

7.ID.; ID.; OBLIGATION IMPOSED ON HEIRS SHOULD NOT BE CONSIDERED A CONDITION UNLESS IT CLEARLY APPEARS FROM THE WILL ITSELF THAT SUCH WAS THE INTENTION OF THE TESTATOR. Since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional. 8.ID.; ID.; UNCERTAINTY ON APPLICATION OF ANY PROVISION, INTERPRETED ACCORDING TO TESTATOR'S INTENTION. In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made. Such construction as will sustain and uphold the Will in all its parts must be adopted. 9.ID.; ID.; CANNOT BE THE SUBJECT OF COMPROMISE. A Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will. VITUG, J., separate opinion: 1.CIVIL LAW; WILLS AND SUCCESSION; SUBSTITUTION; KINDS. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. Substitution is simple when the testator designates one or more persons to substitute the heir or heirs instituted in case the latter should die before him, or should not wish, or should be incapacitated to accept the inheritance, and a substitution without a statement of the cases to which it refers shall comprise all said three cases. There is no simple substitution that takes place where the heir originally instituted is able to succeed. Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. Every fideicommissary substitution should be expressly made in order that it may be valid. The term "fideicommissary substitution" need not, however, be used in the will; it is enough that there is a clear and unequivocal statement that one shall enjoy usufructuary or other rights, short of naked ownership or title, over certain property of the testator with the obligation to preserve the property and to transmit it to a second heir. It is essential for the

SYLLABUS 1.CIVIL LAW; WILLS AND SUCCESSION; SUCCESSIONAL RIGHTS TRANSMITTED FROM MOMENT OF DEATH OF DECEDENT. It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. 2.ID.; ID.; INHERITANCE INCLUDES ALL PROPERTY, RIGHTS AND OBLIGATIONS NOT EXTINGUISHED BY DEATH. Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. 3.ID.; ID.; SUBSTITUTION, DEFINED. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. dctai

validity of a fideicommissary substitution that both heirs are living and qualified to succeed at the time of death by the testator and that the substitute does not go beyond one degree from the heir originally instituted.

The antecedent facts are as follows: In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained the following provisions: "FIRST I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City: (a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. (b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx xxx xxx FOURTH

FIFTH (a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year. SIXTH I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister." 4 Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name. Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

2.ID.; ID.; MODE DISTINGUISHED FROM CONDITION. A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance provided he gives a security to ensure compliance with the will of the testator and the return of the thing received together with its fruits and interests, "should (the heir) disregard the obligation." The obligation imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is considered modal, rather than conditional. Much of the variance in the legal effects of the two classes, however, is now practically theoretical and merely conceptual. Under the old Civil Code an institucion sub modo could be said to be more akin to an institution sub demonstratione, or an expression of a wish or suggestion of the testator that did not have any real obligatory force, that matter being left instead to the discretion of the heir, i.e., whether to abide by it or not. The amendatory provisions of the new Civil Code now hardly differentiates between the principal effect of the non-compliance with the mode and that of the occurrence of a resolutory condition expressed in the will. In both instances, the property must be returned to the estate of the decedent to then pass on under the rules on intestacy.

DECISION (a) It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies. Cdpr

PURISIMA, J p: This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that: 1.Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix. 2.Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance. 3.The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent. The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza. On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly. During the pre-trial, the parties admitted that: On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, more specifically, to wit: 75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year; in Azucar Sugar Central; and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years. That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00). That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of December of every sugar crop year, to wit: For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1988-89; For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1989-90; For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1991-92." 5 However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988-1989. On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows: "WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While there may be the nonperformance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice. LexLib SO ORDERED." 6 On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus: "Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendantsappellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendantsappellee's admitted non-compliance with said obligation

since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies. Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. SO ORDERED." 7 Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code. The petition is not impressed with merit. Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a mere simple substitution i.e., the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as to who are the "near descendants" and therefore, under Articles 843 8 and 845 9 of the New Civil Code, the substitution should be deemed as not written. The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law. It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent 10 and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. 11 Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. dctai Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over

the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below. Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should there be non-compliance with the obligation to deliver the piculs of sugar to private respondent. Again, the contention is without merit. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, 12 or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. 13 The Codicil sued upon contemplates neither of the two. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. 14 In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. 15 In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." 16 Also, the near descendants' right to inherit from the testatrix is not definite.

The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the-second heir. 17 In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide: ARTICLE 882.The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. ARTICLE 883.When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.

obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. 19 On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. 20 To some extent, it is similar to a resolutory condition. 21 From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that the subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional. 22 Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not the right to seize the property itself from the instituted heir because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee. In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made. 23 Such construction as will sustain and uphold the Will in all its parts must be adopted. 24 Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in

the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest. Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated settlement between the lessee and the private respondent, and having consummated a settlement with the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of subject property. Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. 25 Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will. WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No Pronouncement as to costs. prcd SO ORDERED. Melo, J., I concur as well in the separate opinion of Justice Vitug. Vitug, J., see separate opininon (concurring in result). Panganiban, J., I join the separate opinion of Justice Vitug.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. 18 A "mode" imposes an

Gonzaga-Reyes, J., took no part.

Separate Opinions

VITUG, J., concurring: By virtue of a codicil appended to her will, Aleja Belleza devised a 511,856square meter parcel of land in Bacolod City, denominated Lot No. 1392 of the Bacolod Cadastral Survey, to Jorge Ravadilla (predecessor-in-interest of petitioner), 1 carrying with it an obligation to deliver to private respondent, Maria Marlena Coscolluela y Belleza, one hundred piculs of sugar per crop year during her lifetime. The portions of the codicil, pertinent to the instant controversy, read: "FIRST "I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla, resident of 141 P. Villanueva, Pasay City: "(a)Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. "b)That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx xxx xxx FOURTH "(a)It is also my command, in this my addition (codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), and also at the time that the lease of Balbinito Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

"FIFTH "(a)Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of this testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year. "SIXTH "I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee, or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near descendants, 2 and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister." 3 Pursuant to the above provisions of the codicil, ownership of Lot No. 1392 was transferred to Jorge Rabadilla and Transfer Certificate of Title No. T44498 was issued in his name. LexLib Sometime in 1983, Jorge Rabadilla died, survived by his wife, Rufina, and their children Johnny, Aurora, Ofelia and Zenaida.

On 21 August 1989, on account of the failure of the heirs of Jorge Rabadilla to comply with the obligation under the codicil, private respondent filed an action, docketed Civil Case No. 5588, against the Rabadilla heirs before the Regional Trial Court, Branch 52, of Bacolod City for the reconveyance of Lot 1392 to the heirs of Aleja Belleza and the cancellation of Transfer Certificate of Title No. 44498 covering the property in the name of Jorge Rabadilla. The trial court dismissed the complaint "without prejudice." 4 On appeal taken by private respondent to the Court of Appeals, the appellate court set aside the appealed decision and held: "Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendantsappellees' obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendantsappellees' admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estate of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

"Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. SO ORDERED." 5

Petitioner, in the instant petition for review, submits that the appellate court has erred in: (1) ordering the reversion of Lot 1392 to the estate of Aleja Belleza on the basis of paragraph six of the codicil, and (2) in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the Civil Code. Additionally, he avers that respondent court has improvidently deviated from the sole issue raised which is the prematurity of the action before the court a quo. Upon the other hand, respondent would have this Court sustain the assailed decision of the Court of Appeals contending that the appellate court is completely justified in delving into the nature of the institution in the codicil, the same having a direct significance on the issue of whether or not the complaint before the trial court has been prematurely filed. Private respondent adds that the institution in question is modal within the context of Article 882 of the Civil Code which gives her the right to seize the subject property. I agree with my colleagues that "substitution" is not here apropos. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. 6 Substitution is simple when the testator designates one or more persons to substitute the heir or heirs instituted in case the latter should die before him, or should not wish, or should be incapacitated to accept the inheritance, and a substitution without a statement of the cases to which it refers shall comprise all said three cases. 7 There is no simple substitution that takes place where the heir originally instituted is able to succeed. 8 Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. 9 Every fideicommissary substitution should be expressly made in order that it may be valid. 10 The term "fideicommissary substitution" need not, however, be used in the will; It is enough that there is a clear and unequivocal statement that one shall enjoy usufructuary or other rights, short of naked ownership or title, over certain property of the testator with the obligation to preserve the property and to transmit it to a second heir. 11 It is essential for the validity of a fideicommissary substitution that both heirs are living and qualified to succeed at the time of death by the testator and that the substitute does not go beyond one degree from the heir originally instituted. The term "one degree" has been the subject of varied interpretation. One view is to the effect that the term means one transfer, citing the Supreme Tribunal of Spain and as advocated by eminent civilists as Justices J.B.L. Reyes, R. Puno, E. Caguioa, and D. Jurado. In Ramirez vs. Ramirez, 12 decided on 15 February 1982, the Court, however, adopted the literal view that "one decree" means relationship or generation as so advanced by equally eminent writers Dr. A. Padilla, Justice E. Paras and Dr. A. Tolentino. In the subsequent case of the Testate Estate case of Fr. Aranas, 13 however, the Court upheld the

usufructuary right of the Roman Catholic Church under a legacy that now renders doubtful the continued validity of the Ramirez doctrine. dctai The institution of Jorge Rabadilla in the Belleza codicil partook the nature of an institution sub modo, rather than one of substitution, governed by the provisions of Article 882 of the Civil Code. This law provides: "ARTICLE 882.The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. "That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation." (Italics supplied) A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance provided he gives security to ensure compliance with the will of the testator and the return of the thing received together with its fruits and interests, "should (the heir) disregard this obligation." The obligation imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is considered modal, rather than conditional. Much of the variance in the legal effects of the two classes, 14 however, is now practically theoretical and merely conceptual. Under the Old Civil Code 15 an institucion sub modo could be said to be more akin to an institution sub demonstratione, or an expression of a wish or suggestion of the testator that did not have any real obligatory force, that matter being left instead to the discretion of the heir, i.e., whether to abide by it or not. The amendatory provisions of the New Civil Code now hardly differentiates between the principal effect of the non-compliance with the mode and that of the occurrence of a resolutory condition expressed in the will. In both instances, the property must be returned to the estate of the decedent to then pass on under the rules of intestacy. ACCORDINGLY, I also vote for the dismissal of the instant petition.

Panganiban, J., concurs.

[G.R. No. 149017. November 28, 2008.] VALENTE RAYMUNDO, petitioner, vs. TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN SUAREZ, ET AL., respondents.

DECISION

NACHURA, J p: This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision 1 and Resolution 2 in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC) Orders 3 in Civil Case No. 51203. First, the long settled facts. Marcelo and Teofista Isagon Suarez' 4 marriage was blessed with both material wealth and progeny in herein respondents, namely, Danilo, 5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo, 6 all surnamed Suarez. During their marriage, governed by the conjugal partnership of gains regime, they acquired numerous properties, which included the following: (1) a parcel of land situated in Barrio Caniogan, Pasig with an area of 348 square meters covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located in Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A-01700723 (subject properties). After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez, 7 executed an Extrajudicial Settlement of Estate, 8 partitioning Marcelo Sr.'s estate, thus: DHTCaI

WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs: TEOFISTA ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being the legitimate children of the deceased with the said TEOFISTA ISAGON; WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in her capacity as the guardian and legal administrator of the property of the said minors; WHEREAS, there are no known debts or financial obligations of whatever nature and amount against the estate of the deceased; NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle and liquidate the assets of the conjugal partnership between the deceased and TEOFISTA ISAGON, and to settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in the following manner, to wit: 1.That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in absolute and exclusive ownership the following properties as her lawful share in the assets of the conjugal partnership of gains between her and the deceased, to wit: (a)Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal; (b)Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939, situated at Sitio

Pantayan, Municipality of Taytay, Province of Rizal; (c)Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal; (d)Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal; aSTAIH (e)TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited with the Commercial Bank and Trust Company of the Philippines, and THIRTY-NINE PESOS (P39.00) deposited with Prudential Bank. 2.That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive and be entitled to a share equivalent to one-seventh (1/7) of the estate of the deceased MARCELO SUAREZ, which estate is comprised of the following properties, to wit: (a)A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality of Pasig, Province of Rizal, with an assessed value of P4,150.00. (b)Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P560.00.

(c)A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P440.00. (d)Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II4653, G.L.R.O. Record No. _____, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P590.00. (e)Two parcels of land, being Lots Nos. 43 and 45 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _______, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P1,190.00. (f)A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a portion of Lot 2, Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe Neri, Province of Rizal, with an assessed value of P6,340.00. EICSTa (g)A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province of Rizal, with an assessed value of P1,840.00. (h)TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc. represented by Certificate No. 71-5-B (for 1,000 shares) and Certificate No. 12736 (for 11,000 shares).

PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the share of each heir being pro indiviso. Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial Settlement of Estate as forming part of Marcelo's and Isagon's property regime, remained in the couple's name. Not surprisingly, Teofista continued to administer and manage these properties. On the whole, apart from those now owned exclusively by Teofista, all the properties were held pro indiviso by Teofista and her children; and respective titles thereto were not changed, with Teofista as de facto administrator thereof. In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%) of the former's shares of stock, were sued by petitioner Valente Raymundo, his wife Violeta, Virginia Banta and Maria Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract and Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the then Court of First Instance (CFI) of Rizal, Branch 1, rendered judgment: (1) rescinding the respective contracts of plaintiffs with Rizal Realty and Teofista, and (2) holding the two defendants solidarily liable to plaintiffs for damages in the aggregate principal amount of about P70,000.00. 9 When the judgment of the CFI became final and executory, herein subject properties were levied and sold on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal Realty. The aforementioned plaintiffs were the highest bidder, and bought the levied properties for the amount of P94,170.00. As a result, a certificate of sale was issued to them and registered in their favor on August 1, 1983. On July 31, 1984, the Provincial Sheriff of Rizal issued a final deed of sale over the subject properties. SacTAC Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents filed a revindicatory action against petitioner Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil Case No. 51203, for the annulment of the auction sale and recovery of ownership of the levied properties. Essentially, respondents alleged in their complaint that they cannot be held liable for the judgment rendered against their mother, Teofista, not having been impleaded therein; and consequently, the subject properties, which they own pro indiviso with their mother, can neither be levied nor be sold on execution.

Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379, issued an Order 10 directing Teofista: (1) to vacate the subject properties, (2) to desist from despoiling, dismantling, removing or alienating the improvements thereon, (3) to place petitioner Valente, Violeta, Virginia and Maria Concepcion in peaceful possession thereof, and (4) to surrender to them the owner's duplicate copy of the torrens title and other pertinent documents. Herein respondents, joined by their mother, Teofista, filed a Motion for Reconsideration arguing that the subject properties are coowned by them and further informing the RTC of the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court denied Teofista's and herein respondents' motion, reiterated its previous order, which included, among others, the order for Teofista and all persons claiming right under her, to vacate the lots subject of the judicial sale. Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the foregoing orders. The appellate court, on July 6, 1987, dismissed Teofista's and herein respondents' petition, thus: We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails to show how the respondent judge had acted without or in excess of jurisdiction or with grave abuse of discretion. The two orders being assailed were preceded by a final judgment, a corresponding writ of execution, a levy on execution and a judicial sale, all of which enjoy a strong sense presumption of regularity. cDIHES Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy because she was a party in the consolidated cases where judgment was rendered against her in her personal capacity. Since she did not appeal from the decision, she cannot say that the judgment is erroneous for an obligation that belong to the corporation. And with respect to the children of Teofista Suarez, who are co-petitioners in this proceedings [herein respondents], suffice it to point out that not being parties in the consolidated cases, what they should have done was to immediately file a third party claim. The moment levy was made on the parcels of land, which they claim are theirs by virtue of hereditary succession, they should have seasonably filed such claim to protect their rights. As the record discloses, however, the children chose to remain silent, and even allowed the auction sale to be held, filing almost a year later a half-

hearted complaint to annul the proceedings which they allowed to be dismissed by not diligently prosecuting it.

In Santos v. Mojica (10 SCRA 318), a partition case with third-party claimants, the Supreme Court came out with the following ruling: "The procedure (a petition for certiorari) followed by him (a petitioner not party to the original partition case) in vindicating his right is not the one sanctioned by law, for he should have filed a separate and independent action making parties therein the sheriff and the plaintiffs responsible for the execution . . . . It can, therefore, be said that (he) acted improperly in filing the present petition because his remedy was to file a separate and independent action to vindicate his ownership over the land. WHEREFORE, the petition is denied and the restraining order previously issued is DISSOLVED, with costs against petitioners. 11 On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was issued by the RTC Pasig, Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta, Virginia and Maria Concepcion from transferring to third parties the levied properties based on its preliminary finding that the auctioned properties are co-owned by Teofista and herein respondents. Subsequently, however, Civil Case No. 51203 was dismissed by the RTC, Branch 155, at the instance of petitioner Valente for failure of herein respondents to prosecute. But in yet another turn of events, the RTC, Branch 155, lifted its previous order of dismissal and directed the issuance of alias summons. Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria Concepcion's turn to file a petition for certiorari with the CA, assailing the various orders of the RTC, Branch 155, which all rejected their bid to dismiss Civil Case No. 51203. The CA granted their petition, thus: aIAEcD And the fact that herein private respondents, as the legal heirs of Teofista Vda. de Suarez and supposedly not parties in Civil Case Nos. 21376 21379 does not preclude the application of the doctrine of res judicata since, apart from the requisites constitutive of this

procedural tenet, they were admittedly the children of Teofista Suarez, who is the real party-in-interest in the previous final judgment. As successors-in-interest of Teofista Suarez, private respondents merely stepped into the shoes of their mother in regard to the levied pieces of property. Verily, there is identity of parties, not only where the parties in both actions are the same, but where there is privity with them as in the cases of successors-ininterest by title subsequent to the commencement of the action or where there is substantial identity. Finally, the action to annul the judicial sale filed by herein private respondents is not the reinvindicatory suit, much less the third party claim contemplated by Section 17 of Rule 39. WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled; further respondent judge is ordered to dismiss Civil Case No. 51203. 12 From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of Appeals, 13 we reversed the appellate court, thus: Even without touching on the incidents and issues raised by both petitioner [herein respondents] and private respondents [petitioner Valente, Violeta, Virginia and Maria Concepcion] and the developments subsequent to the filing of the complaint, [w]e cannot but notice the glaring error committed by the trial court. It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land [subject properties] should have been the subject of the auction sale. The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case:

The rights to the succession are transmitted from the moment of the death of the decedent." Article 888 further provides: DaHISE "The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided." Article 892, par. 2 likewise provides: "If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants." Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is different from and adverse to that of their mother [Teofista]. Petitioners [herein respondents] became coowners of the property not because of their mother [Teofista] but through their own right as children of their deceased father [Marcelo Sr.]. Therefore, petitioners [herein respondents] are not barred in any way from instituting the action to annul the auction sale to protect their own interest. WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion.

It was at this point when another series of events transpired, culminating in the present petition. 2005jurcd Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein respondents, as plaintiffs therein, was hotly contested and opposed by therein defendants, including petitioner Valente. Moreover, even at that stage, when the case had been remanded with a directive to "determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion," Civil Case No. 51203 had to be re-raffled and transferred, for varied reasons, to the different court branches in Pasig City. In between all these, petitioner Valente, along with the other defendants, repeatedly filed a Motion to Dismiss Civil Case No. 51203 for the purported failure of herein respondents to prosecute the case. Most of these Motions to Dismiss were denied. With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study the records anew. Expectedly, part of the records went missing and were lost. On April 12, 1993, the Clerk of Court of RTC, Branch 71, to which Civil Case No. 51203 was remanded, filed a report on the records of the case, to wit: 1.The first volume of the record in the above-entitled case was recorded as received on June 20, 1990, by Sheriff Alejandro O. Loquinario; 2.That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First Floor of the Justice Hall, and as the Branch was newly formed, it had no equipment or furniture of its own, and was still undermanned; 3.That sometime in August 1990, Branch 71 moved to the staffroom of Branch 159 at the Second Floor of the Justice Hall; 4.That on October 25, 1990, this Court received a Notice of Judgment dated October 22, 1990 from the Court of Appeals that ruled the dismissal of the above-entitled case, and as per standing instructions of Judge Graduacion A. Reyes-Claravall, the same was bound as volume 2 of the case;

5.That just before the Christmas vacation in 1991, the branch was forced to hastily move all of its records and equipment to branch 69, because of the unexpected notice we received that the room we were occupying was to be demolished in order to meet the schedule for the renovation of the building; TcAECH 6.That unfortunately, the room was demolished before the undersigned could make a last check to see if everything was transferred; 7.That it was only later on that this office discovered that important documents were indeed lost, including transcripts of stenographic notes in a case that was submitted for decision; 8.That sometime in May 1992, the branch moved its Office to its present location; 9.That on March 8, 1993, this Court received a copy of a Decision of the Supreme Court reversing the earlier ruling of the Court of Appeals; 10.That it was at this time that the first volume of this case, which was bundled along with other cases which were decided and/or archived, was reported as missing; 11.That from the time the same was found to be missing, Judge Claravall ordered that a search for the same be made in all of the offices wherein this branch was forced to share a room with, as well as the Court of Appeals, in the event that the same was transmitted to said Court; 12.That all the efforts were in vain, as said record could not be located anywhere; 13.That the undersigned now concludes that the first volume of the above-entitled case was probably lost during the renovation of the Justice Hall Building, and will have to be reconstituted with the use of documents in the possession of the parties, or documents entered as exhibits in other Courts. 14

In this regard, herein respondents filed a Motion for Reconstitution of Records 15 of the case. Initially, petitioner Valente, and the other defendants Violeta, Virginia and Maria Concepcion opposed the motion. 16 However, the trial court eventually granted the motion for reconstitution, and ordered petitioner Valente and the other defendants to submit a copy of their Answer filed thereat and copies of other pleadings pertinent to the case. 17 STADIH Thereafter, three (3) incidents, among numerous others, set off by the parties' pleadings, are worth mentioning, to wit: 1.A Motion for Leave to File and Admit Supplemental Complaint 18 filed by herein respondents. The Supplemental Complaint additionally prayed that the levy and sale at public auction of the subject properties be annulled and set aside, as the bid price was unconscionable and grossly inadequate to the current value of the subject properties. The Supplemental Complaint further sought a re-bidding with respect to Teofista's share in the subject properties. Finally, it prayed that TCT No. 6509 in the name of petitioner Valente, Violeta, Virginia and Maria Concepcion be cancelled and TCT No. 30680 in the name of Marcelo Suarez, married to Teofista Isagon, be reinstated.

obviously because the plaintiffs [herein respondents] are in full possession and enjoyment of the property in dispute. In its decision of September 4, 1992, the SUPREME COURT nullified TWO final and executory DECISIONS of the Court of Appeals in an unprecedented action. In said decision, the Supreme Court ordered the plaintiffs [herein respondents] to establish with evidence their personality as heirs of Marcelo Suarez, and after being able to do so, to adduce evidence that would determine what portion belongs to plaintiffs hence the above matters need be litigated upon before the RTC can "annul the sale with regard to said portion" (belonging to the plaintiffs alleged heirs). acAIES On these incidents, the records reveal the following Orders issued by the different branches of the RTC: 1.Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch 266, Pasig City, admitting herein respondents' Supplemental Complaint. 21 2.Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a) herein respondents' Manifestation and Motion (to execute/enforce Decision dated September 4, 1992 of the Supreme Court), and (b) therein defendants' (including herein petitioner Valente's) Request for Answer to Written Interrogatories. 22 The RTC, Branch 67, resolved the incidents, thus: From the foregoing uncontroverted facts, this Court is convinced beyond a shadow of doubt that the Decision of the Supreme Court of September 4, 1992, being the final arbiter in any judicial dispute, should be implemented for the following reasons: xxx xxx xxx On the request for Answers to Written Interrogatories filed by the defendants, it is obvious that at this stage of the proceedings where the Supreme Court had already pronounced the undisputed facts, which binds this court, the answer sought to be elicited through written interrogatories, therefore, are entirely irrelevant, aside from having been filed way out of time.

2.A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of the Supreme Court) 19 filed by herein respondents pointing out that the Supreme Court itself had noted the current increased value of the subject properties and that petitioner Valente, Violeta, Virginia and Maria Concepcion unjustly enriched themselves in appropriating the subject properties worth millions then, for a measly bid price of P94,170.00, for a judgment obligation worth only P70,000.00. 3.An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court Decision or to consider the matter submitted without evidence on the part of plaintiffs] 20 filed by therein defendants, including herein petitioner Valente, pointing out that plaintiffs (herein respondents) have yet to comply with the RTC, Branch 67 Order commanding them to submit (to the RTC) any evidence showing settlement of the estate of the deceased Marcelo Suarez, in order for the court to determine the portion in the estate which belongs to Teofista. The Urgent Motion stated in paragraph 2, thus: 2.The defendants [including herein petitioner Valente] did everything possible to expedite the disposition of this case while the plaintiffs [herein respondents] did everything possible to DELAY the disposition of the same

WHEREFORE, premises considered, this court, implements the decision of the Supreme Court dated September 4, 1992 which mandates that: ". . . and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioner and to annul the sale with regard to said portion." In order to enforce such mandate of the Supreme Court, this court orders that: DTcHaA a.The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in relation thereto are declared null and void. b.Transfer Certificate of Title No. 6509 in the name of defendant Valente Raymundo is also declared null and void, and the Register of Deeds of Rizal, Pasig City, is ordered to issue a new one in the name of the deceased Marcelo Suarez or to reinstate Transfer Certificate of Title No. 30680 in the name of Marcelo Suarez. c.Teofista Suarez is ordered to reimburse the amount of P94,170.00, plus legal interest from the date of issuance of this order, and failing which, the portion of the estate of Marcelo Suarez belonging to the surviving spouse, Teofista Suarez, may be levied on execution. d.[Herein respondents], including Teofista Suarez, are hereby ordered to submit to this court any evidence showing settlement of the estate of the deceased, Marcelo Suarez, in order for this court to determine the portion in the estate which belongs to Teofista Suarez. Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which the trial court denied on May 29, 1996.

3.Order dated September 10, 1996, issued by Judge Santos denying the appeal interposed by petitioner Valente from the January 22, 1996 and May 29, 1996 Orders, ruling that these are interlocutory orders, and, therefore, not appealable. 23 4.Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, thus: Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the plaintiff to prove their affiliation with the deceased which is one of the matters written in the decision of the higher court which must be complied with, and in order for counsel for the plaintiffs [herein respondents] to have the opportunity to complete all documentary evidence and in view of abbreviating the proceedings and as prayed for, today's scheduled pre-trial is re-set for the last time to May 19, 1999 at 8:30 a.m. AaECSH In this connection, counsel for plaintiffs [herein respondents] is advised to secure all the documentary evidence she needs material to this case which will expedite the disposition of this case. 24 This last Order and therein defendants' Urgent Motion spawned another contentious issue between the parties. In this connection, Judge Estrella issued an Order 25 requiring the parties to file their respective position papers due to the "divergent views on the nature of the hearing that should be conducted in compliance with" our decision in Suarez. Both parties duly filed their position papers, with herein respondents attaching thereto a copy of the Extrajudicial Settlement of Estate executed by the heirs of Marcelo Suarez in 1957. In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated January 11, 2000, which reads, in part: This Court is of the view that the Honorable Supreme Court is not a trier of facts, precisely it directed that the records of this case be remanded to the Regional Trial Court for further proceedings. xxx xxx xxx

It is a matter of record that there was no trial on the merits completed in the Regional Trial Court. . . . The Supreme Court reversed the judgment of the Court of Appeals and ordered the reinstatement of Civil Case No. 51203. Naturally, there was no trial on the merits before this Court that allowed the parties to adduce evidence to establish their respective claims in the plaintiffs' [herein respondents] complaint and in the defendants' [including petitioner Valente] counter-claim, respectively. It is in this context that the Honorable Supreme Court reinstated the "action [of herein respondents] to annul the auction sale to protect their [herein respondents] own interest. While this Court is of the view that trial on the merits is necessary for the purpose of giving the plaintiffs [herein respondents] a chance to adduce evidence to sustain their complaint and the defendants [including petitioner Valente] to prove their defense, consistent with the directive of the Honorable Supreme Court (in its Decision promulgated on September 4, 1992), the Court is, however, confronted with the very recent decision of the Honorable Supreme Court in "Heirs of Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R. No. 124320, March 2, 1999" where it held that AIDTSE The declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solve vs. Court of Appeals (182 SCRA 119, 128). The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as "one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right.

In as much as the leading case on the matter is that of "Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320, March 2, 1999" it is left with no choice but to obey said latter doctrine. WHEREFORE, the foregoing premises considered, this Court holds that in the light of the doctrine laid down in the case of "Heirs of Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999" this case is dismissed without prejudice to the plaintiffs' [herein respondents'] filing a special proceeding consistent with said latest ruling. 26 Herein respondents moved for reconsideration thereof which, however, was denied by the RTC, Branch 67 on March 14, 2000. 27 Consequently, herein respondents filed a petition for certiorari before the CA alleging grave abuse of discretion in the trial court's order dismissing Civil Case No. 51203 without prejudice. All the defendants in the trial court were impleaded as private respondents in the petition. Yet, curiously, only petitioner Valente filed a Comment thereto. The appellate court granted the petition, recalled and set aside RTC, Branch 67's Orders dated January 11, 2000 and March 14, 2000, and reinstated Judge Santos' Orders dated May 29, 1996 and September 6, 1996. It disposed of the petition, thus:

respondents], issued an order to execute/enforce the decision of the Supreme Court . . . . xxx xxx xxx [Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice of appeal on the order of Judge Santos. The appeal, on motion of [herein respondents] was denied on September 10, 1996. Obviously, the decision of the Supreme Court had become final and executory. Likewise, both orders of Judge Santos dated May 29, 1996 denying the motion for reconsideration and the denial of the notice of appeal dated September 6, 1996 had also become final and executory. The denial of petitioner Valente's Motion for Reconsideration prompted the filing of this present petition for certiorari. Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and setting aside the Orders of Judge Estrella and reinstating those of Judge Santos because: 1.The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos were final and executory, and yet the latter did not allow an appeal to be taken therefrom ratiocinating that the questioned orders were interlocutory, and therefore, not appealable; and 2.The CA ignored and violated the Supreme Court's ruling in Heirs of Yaptinchay v. Del Rosario 28 which held that a declaration of heirship must be made in a special proceeding and not in a civil action. We find the petition bereft of merit. DEcITS At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA decision. Petitioner should have filed a petition for review on certiorari under Rule 45 of the Rules of Court. Simply imputing in a petition that the decision sought to be reviewed is tainted with grave abuse of discretion does not magically transform a petition into a special civil action for certiorari. The CA decision disposed of the merits of a special civil action, an original petition, filed thereat by herein respondents. That disposition is a final and executory order, appealable to, and may be questioned before, this Court by persons aggrieved thereby, such as petitioner Valente, via Rule 45.

On this score alone, the petition should have been dismissed outright. However, we have disregarded this procedural flaw and now resolve this case based on the merits or lack thereof. Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to a trickery to prevent an appeal against a final order by claiming that the appealed order is merely interlocutory and later maintain that the same order has become final after declaring it to be interlocutory." We reject petitioner's paltry contention. Petitioner apparently does not comprehend the distinction between an interlocutory order which is final and executory, and a final order which disposes of the controversy or case; much less, understand the available remedies therefrom. We have defined an interlocutory order as referring to something between the commencement and the end of the suit which decides some point or matter but it is not the final decision on the whole controversy. 29 It does not terminate or finally dismiss or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits. 30 Upon the other hand, a final order is one which leaves to the court nothing more to do to resolve the case. 31 On more than one occasion, we laid down the test to ascertain whether an order is interlocutory or final i.e., "Does it leave something to be done in the trial court with respect to the merits of the case?" If it does, it is interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is something more to be done on the merits of the case. 32 The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are interlocutory, and therefore, not appealable, as they leave something more to be done on the merits of the case. In fact, in paragraph (d) of Judge Santos' Order dated May 29, 1996, herein respondents were directed to submit evidence showing settlement of the estate of the deceased Marcelo Sr. IDTcHa Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction between an interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying petitioner Valente's Notice of Appeal attained finality when he failed to file a petition for certiorari under Rule 65 of the Rules of Court. We cannot overemphasize the rule that the correct identification of the nature of an assailed order determines the remedies available to an aggrieved party. The old Rules of Court in Section 2, Rule 41 reads, thus:

We agree with [herein respondents]. EIAScH On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the decision of the Court of Appeals and mandates that Civil Case No. 51203 be reinstated in order to determine the portion in the estate which belongs to Teofista Suarez. The sale of the parcels of land was declared null and void. Necessarily, the title (TCT No. 5809) in the name of respondents was also declared null and void. . . . xxx xxx xxx Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on January 22, 1996 and on motion of [herein

SEC. 2.Judgments or orders subject to appeal. Only final judgments or orders shall be subject to appeal. No interlocutory or incidental judgment or order shall stay the progress of an action, nor shall it be the subject of appeal until final judgment or order is rendered for one party or the other. xxx xxx xxx With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for the appropriate remedy to be taken from an interlocutory order, thus: SEC. 1.Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: xxx xxx xxx (c)An interlocutory order; xxx xxx xxx In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the Orders dated May 29, 1996 and September 6, 1996 was in order. Thus, the CA decision affirming the RTC's denial was correct. ECaScD Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition for certiorari from the CA decision in CA-G.R. SP No. 58090, which is not an interlocutory order. It is a final order which completely disposed of the merits of the case with nothing more left to be done therein. The correct and available remedy available to petitioner Valente was, as

previously discussed, a petition for review on certiorari under Rule 45 of the Rules of Court. In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to appeal the interlocutory orders of the RTC which are unappealable. Thus, the RTC properly denied his Notice of Appeal, and the CA correctly upheld the RTC. He should have filed a petition for certiorari; under Rule 65. On the other hand, from the final order of the CA, he comes before this Court on a petition for certiorari under Rule 65, when the proper remedy is an appeal by certiorari under Rule 45. In the recent case of Jan-Dec Construction Corporation v. Court of Appeals 33 we ruled in this wise: As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review under Rule 45 of the Rules. Under Rule 45, decisions, final orders or resolutions of the CA in any case,i.e., regardless of the nature of the action or proceedings involved, may be appealed to the Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. It seeks to correct errors of judgment committed by the court, tribunal, or officer. In contrast, a special civil action for certiorari under Rule 65 is an independent action based on the specific grounds therein provided and proper only if there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. It is an extraordinary process for the correction of errors of jurisdiction and cannot be availed of as a substitute for the lost remedy of an ordinary appeal. Independently of this procedural infirmity, even on the merits of the case, the petition does not fare otherwise. It must be dismissed for lack of merit. AHEDaI Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del Rosario, 34 herein respondents must first be declared heirs of Marcelo Sr. before they can file an action to annul the judicial sale of what is, undisputedly, conjugal property of Teofista and Marcelo Sr.

We disagree. Our ruling in Heirs of Yaptinchay is not applicable. Herein respondents' status as legitimate children of Marcelo Sr. and Teofista and thus, Marcelo Sr.'s heirs has been firmly established, and confirmed by this Court in Suarez v. Court of Appeals. 35 True, this Court is not a trier of facts, 36 but as the final arbiter of disputes, 37 we found and so ruled that herein respondents are children, and heirs of their deceased father, Marcelo Sr. This having been settled, it should no longer have been a litigated issue when we ordered a remand to the lower court. In short, petitioner Valente's, Violeta's, Virginia's, and Maria Concepcion's representation in the RTC that our ruling in Suarez required herein respondents to present evidence of their affiliation with the deceased, Marcelo Sr., is wrong. As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is reinstated only to determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion." There is clearly no intimation in our decision for the RTC to have to determine an already settled issue i.e., herein respondents' status as heirs of Marcelo Sr.

Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein respondents as legitimate children of Marcelo Sr. and Teofista, and likewise demand that herein respondents first prove their filiation to Marcelo Sr. The following records bear out Marcelo, Sr.'s and Teofista's paternity of herein respondents, and the latter's status as legitimate children: 1.The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein respondents, questioned the RTC, Branch 151's Orders dated October 10, 1984 and October 14, 1986. Although the CA ruled against Teofista and herein respondents, it explicitly recognized the latter's status as legitimate children of Teofista and Marcelo Sr.; and 38 acHITE 2.The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein respondents were, as children of Teofista, merely successors-ininterest of the latter to the property and by virtue thereof, bound by the judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine of res judicata. 39 We subsequently reversed this ruling on the wrong application of res judicata in the conclusive case of Suarez. We retained and affirmed, however, the CA's factual finding of herein respondents' status as heirs of Marcelo Sr. We categorically held therein that "the proprietary interest of [herein respondents] in the levied and auctioned [properties] is different from and adverse to that of [Teofista]. [Herein respondents] became co-owners of

the property not because of [Teofista] but through their own right as children of their deceased father [, Marcelo Sr.]." Clearly, herein respondents' long possessed status of legitimate children of Marcelo Sr. and Teofista cannot be indirectly or directly attacked by petitioner Valente in an action to annul a judicial sale. Articles 262, 40 263, 41 265 and 266 42 of the Civil Code, the applicable law at the time of Marcelo's death, support the foregoing conclusion, to wit: Art. 262.The heirs of the husband may impugn the legitimacy of the child only in the following cases: (1)If the husband should die before the expiration of the period fixed for bringing his action; (2)If the husband should die after the filing of the complaint, without having desisted from the same; (3)If the child was born after the death of the husband. Art. 263.The action to impugn the legitimacy of the child shall be brought within one year from the recording of birth in the Civil Register, if the husband should be in the same place, or in a proper case, any of his heirs. If he or his heirs are absent, the period shall be eighteen months if they should reside in the Philippines; and two years if abroad. If the birth of the child has been concealed, the term shall be counted from the discovery of the fraud. AEIDTc Art. 265.The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. Art. 266.In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child. In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCT's was dismissed for failure of the petitioners to

demonstrate "any proof or even a semblance of it" that they had been declared the legal heirs of the deceased couple, the spouses Yaptinchay. In stark contrast, the records of this case reveal a document, an Extrajudicial Settlement of Marcelo Sr.'s estate, which explicitly recognizes herein respondents as Marcelo Sr.'s legitimate children and heirs. The same document settles and partitions the estate of Marcelo Sr. specifying Teofista's paraphernal properties, and separates the properties she owns in common with her children, herein respondents. Plainly, there is no need to re-declare herein respondents as heirs of Marcelo Sr., and prolong this case interminably. Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the subject properties only by virtue of an execution sale to recover Teofista's judgment obligation. This judgment obligation is solely Teofista's, and payment therefor cannot be made through an execution sale of properties not absolutely owned by her. These properties were evidently conjugal properties and were, in fact, even titled in the name of Marcelo, Sr. married to Teofista. Thus, upon Marcelo Sr.'s death, by virtue of compulsory succession, Marcelo Sr.'s share in the conjugal partnership was transmitted by operation of law to his compulsory heirs. Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article 778 43 of the Civil Code. It reserves a portion of the net estate of the decedent in favor of certain heirs, or group of heirs, or combination of heirs, prevailing over all kinds of succession. 44 The portion that is so reserved is the legitime. Article 886 of the Civil Code defines legitime as "that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs." Herein respondents are primary compulsory heirs, 45 excluding secondary compulsory heirs, 46 and preferred over concurring compulsory heirs in the distribution of the decedent's estate. 47 EaCSTc Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate in 1957, it must be stressed that herein respondents' rights to the succession vested from the moment of their father's death. 48 Herein respondents' ownership of the subject properties is no longer inchoate; it became absolute upon Marcelo's death, although their respective shares therein remained pro indiviso. Ineluctably, at the time the subject properties were sold on execution sale to answer for Teofista's judgment obligation, the inclusion of herein respondents' share therein was null and void. In fine, Teofista's ownership over the subject properties is not absolute. Significantly, petitioner Valente does not even attempt to dispute the conjugal

nature of the subject properties. Since Teofista owns only a portion of the subject properties, only that portion could have been, and was actually, levied upon and sold on auction by the provincial sheriff of Rizal. Thus, a separate declaration of heirship by herein respondents is not necessary to annul the judicial sale of their share in the subject properties. We note the recent case of Portugal v. Portugal-Beltran, 49 where we scrutinized our rulings in Heirs of Yaptinchay and the cited cases of Litam v. Rivera 50 and Solivio v. Court of Appeals, 51 and Guilas v. CFI Judge of Pampanga 52 cited in Solivio. We ruled thus: The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or parties to the special proceedings for its settlement is that if the special proceedings are pending, or if there are no special proceedings filed but there is, under the circumstances of the case, a need to file one, then the determination of, among other issues, heirship should be raised and settled in said special proceedings. Where special proceedings had been instituted but had been finally closed and terminated, however, or if a putative heirs has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased. aCIHAD In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugal's estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section of the Revised Rules of Court. Said rule is an exception to the general rule that when a person dies leaving property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein. xxx xxx xxx

It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an administration proceedings. And it is superfluous in light of the fact that the parties to the civil case subject of the present case, could and had already in fact presented evidence before the trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial. In fine, under the circumstances of the present case, there being no compelling reason to still subject Portugal's estate to administration proceedings since a determination of petitioners' status as heirs could be achieved in the civil case filed by petitioners . . . . 53 All told, under the circumstances, in addition to the already settled status of herein respondents as heirs of Marcelo Sr., there is no need to dismiss Civil Case No. 51203 and require herein respondents to institute a separate special proceeding for a declaration of their heirship. WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 58090 is AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are REINSTATED. Costs against the petitioner. SO ORDERED. Puno, C.J., * Ynares-Santiago, Austria-Martinez and Chico-Nazario, JJ., concur.

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ,petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.

Jose W. Diokno for petitioner and appellant. Deogracias C. Eufemio for respondent and appellee.

assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under section 17 Rule 3 of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party. The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 67, of the Revised Rules of Court which shows that neither action for legal separation or for annulment of marriage can be deemed fairly included therein. 4.ID.; ID.; ID.; ID.; ID.; REASON. The reason why an action is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn. 5.ID.; ID.; ID.; ACTION FOR DECLARATION OF NULLITY AB INITIO OF MARRIAGE; EFFECT OF DEATH OF PLAINTIFF UPON DEFENDANT'S PROPERTY RIGHTS. A petition for a declaration of nullity ab initio of marriage becomes moot and academic upon the death of the wife, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Art. 144 of the Civil Code of the Philippines could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant. 6.ID.; ID.; ID.; ACTION FOR ANNULMENT OF BIGAMOUS VOIDABLE MARRIAGE; EFFECT OF DEATH OF ONE PARTY; PROPER PROCEEDINGS FOR LIQUIDATION CONJUGAL PARTNERSHIP. Even if the bigamous marriage had not been void ab initio but only voidable under Article 83, par. 2 of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, par. 2 of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in section 3 of the Revised Rule 73, and not in the annulment proceedings.

SYLLABUS 1.CIVIL LAW; ACTION FOR LEGAL SEPARATION; NATURE OF ACTION; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL DECREE. The death of the plaintiff before final decree in an action for legal separation abates the action. An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation and in its article 108, by providing that the spouses can, by reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona. 2.ID.; ID.; ID.; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL DECREE ON PROPERTY RELATIONS. A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. 3.ID.; ID.; ID.; ID.; CLAIM TO RIGHTS UNDER ART. 106, CIVIL CODE OF THE PHILIPPINES, EXTINGUISHED UPON THE DEATH OF THE SPOUSE INVOLVED. From Art. 106 of the Civil Code of the Philippines it is apparent that the right to the dissolution of the conjugal partnership or gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as revocation testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as

[G.R. No. L-30977. January 31, 1972.]

DECISION

was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation. On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion. On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969. After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3 Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio. But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did not act on the motion for substitution) stated the principal issue to be as follows: "When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings?" The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate

adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation presupposes a valid marriage, while the petition for nullity has a voidable marriage as a precondition.

REYES, J.B.L., J p: Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment. On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his share of the conjugal partnership profits. In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several other claims involving money and other properties, counterclaimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok. Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her death. On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds, namely: that the petition for legal separation

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? An action for legal separation which involves nothing more than the bed-andboard separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona. ". . . When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. D. 1933, 332." 4 "Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of

either party to a divorce proceeding, before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 III. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185. 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141." 5 The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208). A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil Code provides: "Art. 106.The decree of legal separation shall have the following effects: "(1)The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; "(2)The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of article 176; "(3)The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, for whom said court may appoint a guardian; "(4)The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover,

provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law." . . . From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party. "Sec. 17.Death of party.After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. . . ." The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court: "SECTION 1.Actions which may and which may not be brought against executor or administrator.No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him." Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration.

A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn. As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the latter, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant. In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding. ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No special pronouncement as to costs. Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur. [G.R. No. 82233. March 22, 1990.] JOSE BARITUA and EDGAR BITANCOR, petitioners, vs. HONORABLE COURT OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA NACARIO, respondents.

Ernesto A. Atienza for private respondents.

SYLLABUS 1.CIVIL LAW; OBLIGATION; MODES OF EXTINGUISHMENT. Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides: Art. 1231. Obligations are extinguished: (1) By payment or performance; (2) By the loss of the thing due; (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation. 2.ID.; ID.; ID.; SUCCESSORS IN INTEREST AUTHORIZED TO RECEIVE PAYMENT IN FAVOR OF DECEASED PERSON. Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made. Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it. Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment. 3.ID.; WILLS AND SUCCESSION; COMPULSORY HEIRS; PARENTS OF THE DECEASED SUCCEED ONLY WHEN THE LATTER DIES WITHOUT A LEGITIMATE DESCENDANT. The Civil Code states: Article 887. The following are compulsory heirs: 1. Legitimate children and descendants, with respect to their legitimate parents and ascendants; 2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; 3. The widow or widower; 4. Acknowledged natural children, and natural children by legal fiction; 5. Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2. Neither do they exclude one another. Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs with all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest of Bienvenido; they are not compulsory heirs.

4.ID.; ID.; ID.; ESTRANGEMENT OF SURVIVING SPOUSE WITH THE DECEASED SPOUSE, NOT A GROUND FOR DISQUALIFICATION. The petitioners acted correctly in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse. 5.REMEDIAL LAW; SPECIAL PROCEEDINGS; CLAIMS AGAINST THE ESTATE; LOAN FOR THE PURCHASE OF PERSONAL PROPERTY AND FUNERAL EXPENSES CONSIDERED MONEY CLAIMS AGAINST THE ESTATE OF THE DECEASED. Private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son.

Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the matter negotiated by the petitioners and the bus' insurer Philippine First Insurance Company, Incorporated (PFICI for brevity) Bienvenido Nacario's widow, Alicia Baracena Vda. de Nacario, received P18,500.00. In consideration of the amount she received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and PFICI, releasing and forever discharging them from all actions, claims, and demands arising from the accident which resulted in her husband's death and the damage to the tricycle which the deceased was then driving. Alicia likewise executed an affidavit of desistance in which she formally manifested her lack of interest in instituting any case, either civil or criminal, against the petitioners. 7 On September 2, 1981, or about one year and ten months from the date of the accident on November 7, 1979, the private respondents, who are the parents of Bienvenido Nacario, filed a complaint for damages against the petitioners with the then Court of First Instance of Camarines Sur. 8 In their complaint, the private respondents alleged that during the vigil for their deceased son, the petitioners through their representatives promised them (the private respondents) that as extra-judicial settlement, they shall be indemnified for the death of their son, for the funeral expenses incurred by reason thereof, and for the damage to the tricycle the purchase price of which they (the private respondents) only loaned to the victim. The petitioners, however, reneged on their promise and instead negotiated and settled their obligations with the long-estranged wife of their late son. The Nacario spouses prayed that the defendants, petitioners herein, be ordered to indemnify them in the amount of P25,000.00 for the death of their son Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for compensatory and exemplary damages, P5,000.00 for attorney's fees, and for moral damages. 9 After trial, the court a quo dismissed the complaint, holding that the payment by the defendants (herein petitioners) to the widow and her child, who are the preferred heirs and successors-in-interest of the deceased Bienvenido to the exclusion of his parents, the plaintiffs (herein private respondents), extinguished any claim against the defendants (petitioners). 10 The parents appealed to the Court of Appeals which reversed the judgment of the trial court. The appellate court ruled that the release executed by Alicia Baracena Vda. de Nacario did not discharge the liability of the petitioners because the case was instituted by the private respondents in their own capacity and not as "heirs, representatives, successors, and assigns" of Alicia; and Alicia could not have validly waived the damages being prayed for (by the private respondents) since she was not the one who suffered these damages arising from the death of their son. Furthermore, the appellate court

DECISION

SARMIENTO, J p: This petition for review on certiorari assails as erroneous and contrary to existing relevant laws and applicable jurisprudence the decision 1 of the Court of Appeals dated December 11, 1987 which reversed and set aside that of the Regional Trial Court, Branch XXXII, at Pili, Camarines Sur. 2 The challenged decision adjudged the petitioners liable to the private respondents in the total amount of P20,505.00 and for costs. LexLib The facts are as follows: In the evening of November 7, 1979, the tricycle then being driven by Bienvenido Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus No. 80 driven by petitioner Edgar Bitancor and owned and operated by petitioner Jose Baritua. 3 As a result of that accident Bienvenido and his passenger died, 4 and the tricycle was damaged. 5 No criminal case arising from the incident was ever instituted. 6

said that the petitioners "failed to rebut the testimony of the appellants (private respondents) that they were the ones who bought the tricycle that was damaged in the incident. Appellants had the burden of proof of such fact, and they did establish such fact in their testimony . . . ." 11 Anent the funeral expenses," (T)he expenses for the funeral were likewise shouldered by the appellants (the private respondents). This was never contradicted by the appellees (petitioners). . . . Payment (for these) were made by the appellants, therefore, the reimbursement must accrue in their favor." 12 Consequently, the respondent appellate court ordered the petitioners to pay the private respondents P10,000.00 for the damage of the tricycle, P5,000.00 for "complete" funeral services, P450.00 for cemetery lot, P55.00 for oracion adulto, and P5,000.00 for attorney's fees. 13 The petitioners moved for a reconsideration of the appellate court's decision 14 but their motion was denied. 15 Hence, this petition. cdll The issue here is whether or not the respondent appellate court erred in holding that the petitioners are still liable to pay the private respondents the aggregate amount of P20,505.00 despite the agreement of extrajudicial settlement between the petitioners and the victim's compulsory heirs. The petition is meritorious.

(Emphasis ours.) There is no denying that the petitioners had paid their obligation arising from the accident that occurred on November 7, 1979. The only question now is whether or not Alicia, the surviving spouse and the one who received the petitioners' payment, is entitled to it. LLpr Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made. Art. 1240.Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it. Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment. The Civil Code states:

Article 985.In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.(Emphasis ours.) Cdpr It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs with all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest of Bienvenido; they are not compulsory heirs. The petitioners therefore acted correctly in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse. Neither could the private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son. 16 These money claims are not the liabilities of the petitioners who, as we have said, had been released by the agreement of the extrajudicial settlement they concluded with Alicia Baracena Vda. de Nacario, the victim's widow and heir, as well as the natural guardian of their child, her coheir. As a matter of fact, she executed a "Release Of Claim" in favor of the petitioners. WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is REVERSED and SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. Costs against the private respondents. prLL SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur. [G.R. No. 149017. November 28, 2008.] VALENTE RAYMUNDO, petitioner, vs. TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN SUAREZ, ET AL., respondents.

Article 887.The following are compulsory heirs: Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides: Art. 1231.Obligations are extinguished: (1)By payment or performance; (2)By the loss of the thing due; (3)By the condonation or remission of the debt; (4)By the confusion or merger of the rights of creditor and debtor; (5)By compensation; (6)By novation. 2.In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; 3.The widow or widower; 4.Acknowledged natural children, and natural children by legal fiction; 5.Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2. Neither do they exclude one another. (Emphasis ours.) 1.Legitimate children and descendants, with respect to their legitimate parents and ascendants;

DECISION

WHEREAS, there are no known debts or financial obligations of whatever nature and amount against the estate of the deceased; NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle and liquidate the assets of the conjugal partnership between the deceased and TEOFISTA ISAGON, and to settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in the following manner, to wit: 1.That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in absolute and exclusive ownership the following properties as her lawful share in the assets of the conjugal partnership of gains between her and the deceased, to wit: (a)Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal; (b)Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal; (c)Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal; (d)Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal; aSTAIH

NACHURA, J p: This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision 1 and Resolution 2 in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC) Orders 3 in Civil Case No. 51203. First, the long settled facts. Marcelo and Teofista Isagon Suarez' 4 marriage was blessed with both material wealth and progeny in herein respondents, namely, Danilo, 5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo, 6 all surnamed Suarez. During their marriage, governed by the conjugal partnership of gains regime, they acquired numerous properties, which included the following: (1) a parcel of land situated in Barrio Caniogan, Pasig with an area of 348 square meters covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located in Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A-01700723 (subject properties). After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez, 7 executed an Extrajudicial Settlement of Estate, 8 partitioning Marcelo Sr.'s estate, thus: DHTCaI WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs: TEOFISTA ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being the legitimate children of the deceased with the said TEOFISTA ISAGON; WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in her capacity as the guardian and legal administrator of the property of the said minors;

(e)TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited with the Commercial Bank and Trust Company of the Philippines, and THIRTY-NINE PESOS (P39.00) deposited with Prudential Bank. 2.That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive and be entitled to a share equivalent to one-seventh (1/7) of the estate of the deceased MARCELO SUAREZ, which estate is comprised of the following properties, to wit: (a)A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality of Pasig, Province of Rizal, with an assessed value of P4,150.00. (b)Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P560.00. (c)A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P440.00. (d)Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II4653, G.L.R.O. Record No. _____, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P590.00. (e)Two parcels of land, being Lots Nos. 43 and 45 of the amendment-subdivision plan

TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _______, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P1,190.00. (f)A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a portion of Lot 2, Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe Neri, Province of Rizal, with an assessed value of P6,340.00. EICSTa (g)A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province of Rizal, with an assessed value of P1,840.00. (h)TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc. represented by Certificate No. 71-5-B (for 1,000 shares) and Certificate No. 12736 (for 11,000 shares). PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the share of each heir being pro indiviso. Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial Settlement of Estate as forming part of Marcelo's and Isagon's property regime, remained in the couple's name. Not surprisingly, Teofista continued to administer and manage these properties. On the whole, apart from those now owned exclusively by Teofista, all the properties were held pro indiviso by Teofista and her children; and respective titles thereto were not changed, with Teofista as de facto administrator thereof. In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%) of the former's shares of stock, were sued by petitioner Valente Raymundo, his wife Violeta, Virginia Banta and Maria Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract

and Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the then Court of First Instance (CFI) of Rizal, Branch 1, rendered judgment: (1) rescinding the respective contracts of plaintiffs with Rizal Realty and Teofista, and (2) holding the two defendants solidarily liable to plaintiffs for damages in the aggregate principal amount of about P70,000.00. 9 When the judgment of the CFI became final and executory, herein subject properties were levied and sold on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal Realty. The aforementioned plaintiffs were the highest bidder, and bought the levied properties for the amount of P94,170.00. As a result, a certificate of sale was issued to them and registered in their favor on August 1, 1983. On July 31, 1984, the Provincial Sheriff of Rizal issued a final deed of sale over the subject properties. SacTAC Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents filed a revindicatory action against petitioner Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil Case No. 51203, for the annulment of the auction sale and recovery of ownership of the levied properties. Essentially, respondents alleged in their complaint that they cannot be held liable for the judgment rendered against their mother, Teofista, not having been impleaded therein; and consequently, the subject properties, which they own pro indiviso with their mother, can neither be levied nor be sold on execution. Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379, issued an Order 10 directing Teofista: (1) to vacate the subject properties, (2) to desist from despoiling, dismantling, removing or alienating the improvements thereon, (3) to place petitioner Valente, Violeta, Virginia and Maria Concepcion in peaceful possession thereof, and (4) to surrender to them the owner's duplicate copy of the torrens title and other pertinent documents. Herein respondents, joined by their mother, Teofista, filed a Motion for Reconsideration arguing that the subject properties are coowned by them and further informing the RTC of the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court denied Teofista's and herein respondents' motion, reiterated its previous order, which included, among others, the order for Teofista and all persons claiming right under her, to vacate the lots subject of the judicial sale. Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the foregoing orders. The appellate court, on July 6, 1987, dismissed Teofista's and herein respondents' petition, thus:

We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails to show how the respondent judge had acted without or in excess of jurisdiction or with grave abuse of discretion. The two orders being assailed were preceded by a final judgment, a corresponding writ of execution, a levy on execution and a judicial sale, all of which enjoy a strong sense presumption of regularity. cDIHES Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy because she was a party in the consolidated cases where judgment was rendered against her in her personal capacity. Since she did not appeal from the decision, she cannot say that the judgment is erroneous for an obligation that belong to the corporation. And with respect to the children of Teofista Suarez, who are co-petitioners in this proceedings [herein respondents], suffice it to point out that not being parties in the consolidated cases, what they should have done was to immediately file a third party claim. The moment levy was made on the parcels of land, which they claim are theirs by virtue of hereditary succession, they should have seasonably filed such claim to protect their rights. As the record discloses, however, the children chose to remain silent, and even allowed the auction sale to be held, filing almost a year later a halfhearted complaint to annul the proceedings which they allowed to be dismissed by not diligently prosecuting it.

In Santos v. Mojica (10 SCRA 318), a partition case with third-party claimants, the Supreme Court came out with the following ruling: "The procedure (a petition for certiorari) followed by him (a petitioner not party to the original partition case) in vindicating his right is not the one sanctioned by law, for he should have filed a separate and independent action making parties therein the sheriff and the plaintiffs responsible for the execution . . . . It can, therefore, be said that (he) acted improperly in filing the present petition because his remedy was to file a separate and independent action to vindicate his ownership over the land.

WHEREFORE, the petition is denied and the restraining order previously issued is DISSOLVED, with costs against petitioners. 11 On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was issued by the RTC Pasig, Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta, Virginia and Maria Concepcion from transferring to third parties the levied properties based on its preliminary finding that the auctioned properties are co-owned by Teofista and herein respondents. Subsequently, however, Civil Case No. 51203 was dismissed by the RTC, Branch 155, at the instance of petitioner Valente for failure of herein respondents to prosecute. But in yet another turn of events, the RTC, Branch 155, lifted its previous order of dismissal and directed the issuance of alias summons. Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria Concepcion's turn to file a petition for certiorari with the CA, assailing the various orders of the RTC, Branch 155, which all rejected their bid to dismiss Civil Case No. 51203. The CA granted their petition, thus: aIAEcD And the fact that herein private respondents, as the legal heirs of Teofista Vda. de Suarez and supposedly not parties in Civil Case Nos. 21376 21379 does not preclude the application of the doctrine of res judicata since, apart from the requisites constitutive of this procedural tenet, they were admittedly the children of Teofista Suarez, who is the real party-in-interest in the previous final judgment. As successors-in-interest of Teofista Suarez, private respondents merely stepped into the shoes of their mother in regard to the levied pieces of property. Verily, there is identity of parties, not only where the parties in both actions are the same, but where there is privity with them as in the cases of successors-ininterest by title subsequent to the commencement of the action or where there is substantial identity. Finally, the action to annul the judicial sale filed by herein private respondents is not the reinvindicatory suit, much less the third party claim contemplated by Section 17 of Rule 39. WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May

19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled; further respondent judge is ordered to dismiss Civil Case No. 51203. 12 From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of Appeals, 13 we reversed the appellate court, thus: Even without touching on the incidents and issues raised by both petitioner [herein respondents] and private respondents [petitioner Valente, Violeta, Virginia and Maria Concepcion] and the developments subsequent to the filing of the complaint, [w]e cannot but notice the glaring error committed by the trial court. It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land [subject properties] should have been the subject of the auction sale. The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case: The rights to the succession are transmitted from the moment of the death of the decedent." Article 888 further provides: DaHISE "The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided." Article 892, par. 2 likewise provides: "If there are two or more legitimate children or descendants, the surviving spouse shall be

entitled to a portion equal to the legitime of each of the legitimate children or descendants." Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is different from and adverse to that of their mother [Teofista]. Petitioners [herein respondents] became coowners of the property not because of their mother [Teofista] but through their own right as children of their deceased father [Marcelo Sr.]. Therefore, petitioners [herein respondents] are not barred in any way from instituting the action to annul the auction sale to protect their own interest. WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion. It was at this point when another series of events transpired, culminating in the present petition. 2005jurcd Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein respondents, as plaintiffs therein, was hotly contested and opposed by therein defendants, including petitioner Valente. Moreover, even at that stage, when the case had been remanded with a directive to "determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion," Civil Case No. 51203 had to be re-raffled and transferred, for varied reasons, to the different court branches in Pasig City. In between all these, petitioner Valente, along with the other defendants, repeatedly filed a Motion to Dismiss Civil Case No. 51203 for the purported failure of herein respondents to prosecute the case. Most of these Motions to Dismiss were denied. With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study the records anew. Expectedly, part of the records went missing and were lost. On April 12, 1993, the Clerk of Court of RTC, Branch

71, to which Civil Case No. 51203 was remanded, filed a report on the records of the case, to wit: 1.The first volume of the record in the above-entitled case was recorded as received on June 20, 1990, by Sheriff Alejandro O. Loquinario; 2.That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First Floor of the Justice Hall, and as the Branch was newly formed, it had no equipment or furniture of its own, and was still undermanned; 3.That sometime in August 1990, Branch 71 moved to the staffroom of Branch 159 at the Second Floor of the Justice Hall; 4.That on October 25, 1990, this Court received a Notice of Judgment dated October 22, 1990 from the Court of Appeals that ruled the dismissal of the above-entitled case, and as per standing instructions of Judge Graduacion A. Reyes-Claravall, the same was bound as volume 2 of the case; 5.That just before the Christmas vacation in 1991, the branch was forced to hastily move all of its records and equipment to branch 69, because of the unexpected notice we received that the room we were occupying was to be demolished in order to meet the schedule for the renovation of the building; TcAECH 6.That unfortunately, the room was demolished before the undersigned could make a last check to see if everything was transferred; 7.That it was only later on that this office discovered that important documents were indeed lost, including transcripts of stenographic notes in a case that was submitted for decision; 8.That sometime in May 1992, the branch moved its Office to its present location;

9.That on March 8, 1993, this Court received a copy of a Decision of the Supreme Court reversing the earlier ruling of the Court of Appeals; 10.That it was at this time that the first volume of this case, which was bundled along with other cases which were decided and/or archived, was reported as missing; 11.That from the time the same was found to be missing, Judge Claravall ordered that a search for the same be made in all of the offices wherein this branch was forced to share a room with, as well as the Court of Appeals, in the event that the same was transmitted to said Court; 12.That all the efforts were in vain, as said record could not be located anywhere; 13.That the undersigned now concludes that the first volume of the above-entitled case was probably lost during the renovation of the Justice Hall Building, and will have to be reconstituted with the use of documents in the possession of the parties, or documents entered as exhibits in other Courts. 14 In this regard, herein respondents filed a Motion for Reconstitution of Records 15 of the case. Initially, petitioner Valente, and the other defendants Violeta, Virginia and Maria Concepcion opposed the motion. 16 However, the trial court eventually granted the motion for reconstitution, and ordered petitioner Valente and the other defendants to submit a copy of their Answer filed thereat and copies of other pleadings pertinent to the case. 17 STADIH Thereafter, three (3) incidents, among numerous others, set off by the parties' pleadings, are worth mentioning, to wit: 1.A Motion for Leave to File and Admit Supplemental Complaint 18 filed by herein respondents. The Supplemental Complaint additionally prayed that the levy and sale at public auction of the subject properties be annulled and set aside, as the bid price was unconscionable and grossly inadequate to the current value of the subject properties. The Supplemental Complaint further sought a re-bidding with respect to Teofista's share in the subject properties. Finally, it prayed that TCT No. 6509 in the name of petitioner Valente, Violeta,

Virginia and Maria Concepcion be cancelled and TCT No. 30680 in the name of Marcelo Suarez, married to Teofista Isagon, be reinstated.

2.A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of the Supreme Court) 19 filed by herein respondents pointing out that the Supreme Court itself had noted the current increased value of the subject properties and that petitioner Valente, Violeta, Virginia and Maria Concepcion unjustly enriched themselves in appropriating the subject properties worth millions then, for a measly bid price of P94,170.00, for a judgment obligation worth only P70,000.00. 3.An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court Decision or to consider the matter submitted without evidence on the part of plaintiffs] 20 filed by therein defendants, including herein petitioner Valente, pointing out that plaintiffs (herein respondents) have yet to comply with the RTC, Branch 67 Order commanding them to submit (to the RTC) any evidence showing settlement of the estate of the deceased Marcelo Suarez, in order for the court to determine the portion in the estate which belongs to Teofista. The Urgent Motion stated in paragraph 2, thus: 2.The defendants [including herein petitioner Valente] did everything possible to expedite the disposition of this case while the plaintiffs [herein respondents] did everything possible to DELAY the disposition of the same obviously because the plaintiffs [herein respondents] are in full possession and enjoyment of the property in dispute. In its decision of September 4, 1992, the SUPREME COURT nullified TWO final and executory DECISIONS of the Court of Appeals in an unprecedented action. In said decision, the Supreme Court ordered the plaintiffs [herein respondents] to establish with evidence their personality as heirs of Marcelo Suarez, and after being able to do so, to adduce evidence that would determine what portion belongs to plaintiffs hence the above matters need be litigated upon before the RTC can "annul the sale with regard to said portion" (belonging to the plaintiffs alleged heirs). acAIES On these incidents, the records reveal the following Orders issued by the different branches of the RTC:

1.Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch 266, Pasig City, admitting herein respondents' Supplemental Complaint. 21 2.Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a) herein respondents' Manifestation and Motion (to execute/enforce Decision dated September 4, 1992 of the Supreme Court), and (b) therein defendants' (including herein petitioner Valente's) Request for Answer to Written Interrogatories. 22 The RTC, Branch 67, resolved the incidents, thus: From the foregoing uncontroverted facts, this Court is convinced beyond a shadow of doubt that the Decision of the Supreme Court of September 4, 1992, being the final arbiter in any judicial dispute, should be implemented for the following reasons: xxx xxx xxx On the request for Answers to Written Interrogatories filed by the defendants, it is obvious that at this stage of the proceedings where the Supreme Court had already pronounced the undisputed facts, which binds this court, the answer sought to be elicited through written interrogatories, therefore, are entirely irrelevant, aside from having been filed way out of time. WHEREFORE, premises considered, this court, implements the decision of the Supreme Court dated September 4, 1992 which mandates that: ". . . and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioner and to annul the sale with regard to said portion." In order to enforce such mandate of the Supreme Court, this court orders that: DTcHaA a.The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in relation thereto are declared null and void.

b.Transfer Certificate of Title No. 6509 in the name of defendant Valente Raymundo is also declared null and void, and the Register of Deeds of Rizal, Pasig City, is ordered to issue a new one in the name of the deceased Marcelo Suarez or to reinstate Transfer Certificate of Title No. 30680 in the name of Marcelo Suarez. c.Teofista Suarez is ordered to reimburse the amount of P94,170.00, plus legal interest from the date of issuance of this order, and failing which, the portion of the estate of Marcelo Suarez belonging to the surviving spouse, Teofista Suarez, may be levied on execution. d.[Herein respondents], including Teofista Suarez, are hereby ordered to submit to this court any evidence showing settlement of the estate of the deceased, Marcelo Suarez, in order for this court to determine the portion in the estate which belongs to Teofista Suarez. Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which the trial court denied on May 29, 1996. 3.Order dated September 10, 1996, issued by Judge Santos denying the appeal interposed by petitioner Valente from the January 22, 1996 and May 29, 1996 Orders, ruling that these are interlocutory orders, and, therefore, not appealable. 23 4.Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, thus: Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the plaintiff to prove their affiliation with the deceased which is one of the matters written in the decision of the higher court which must be complied with, and in order for counsel for the plaintiffs [herein respondents] to have the opportunity to complete all documentary evidence and in view of abbreviating the proceedings and as prayed for, today's scheduled pre-trial is re-set for the last time to May 19, 1999 at 8:30 a.m. AaECSH

In this connection, counsel for plaintiffs [herein respondents] is advised to secure all the documentary evidence she needs material to this case which will expedite the disposition of this case. 24 This last Order and therein defendants' Urgent Motion spawned another contentious issue between the parties. In this connection, Judge Estrella issued an Order 25 requiring the parties to file their respective position papers due to the "divergent views on the nature of the hearing that should be conducted in compliance with" our decision in Suarez. Both parties duly filed their position papers, with herein respondents attaching thereto a copy of the Extrajudicial Settlement of Estate executed by the heirs of Marcelo Suarez in 1957. In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated January 11, 2000, which reads, in part: This Court is of the view that the Honorable Supreme Court is not a trier of facts, precisely it directed that the records of this case be remanded to the Regional Trial Court for further proceedings. xxx xxx xxx It is a matter of record that there was no trial on the merits completed in the Regional Trial Court. . . . The Supreme Court reversed the judgment of the Court of Appeals and ordered the reinstatement of Civil Case No. 51203. Naturally, there was no trial on the merits before this Court that allowed the parties to adduce evidence to establish their respective claims in the plaintiffs' [herein respondents] complaint and in the defendants' [including petitioner Valente] counter-claim, respectively. It is in this context that the Honorable Supreme Court reinstated the "action [of herein respondents] to annul the auction sale to protect their [herein respondents] own interest. While this Court is of the view that trial on the merits is necessary for the purpose of giving the plaintiffs [herein respondents] a chance to adduce evidence to sustain their complaint and the defendants [including petitioner Valente] to prove their defense, consistent with the directive of the Honorable Supreme Court (in its Decision

promulgated on September 4, 1992), the Court is, however, confronted with the very recent decision of the Honorable Supreme Court in "Heirs of Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R. No. 124320, March 2, 1999" where it held that AIDTSE The declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solve vs. Court of Appeals (182 SCRA 119, 128). The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as "one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right. In as much as the leading case on the matter is that of "Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320, March 2, 1999" it is left with no choice but to obey said latter doctrine. WHEREFORE, the foregoing premises considered, this Court holds that in the light of the doctrine laid down in the case of "Heirs of Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999" this case is dismissed without prejudice to the plaintiffs' [herein respondents'] filing a special proceeding consistent with said latest ruling. 26 Herein respondents moved for reconsideration thereof which, however, was denied by the RTC, Branch 67 on March 14, 2000. 27

Consequently, herein respondents filed a petition for certiorari before the CA alleging grave abuse of discretion in the trial court's order dismissing Civil Case No. 51203 without prejudice. All the defendants in the trial court were impleaded as private respondents in the petition. Yet, curiously, only petitioner Valente filed a Comment thereto. The appellate court granted the petition, recalled and set aside RTC, Branch 67's Orders dated January 11, 2000 and March 14, 2000, and reinstated Judge Santos' Orders dated May 29, 1996 and September 6, 1996. It disposed of the petition, thus:

The denial of petitioner Valente's Motion for Reconsideration prompted the filing of this present petition for certiorari. Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and setting aside the Orders of Judge Estrella and reinstating those of Judge Santos because: 1.The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos were final and executory, and yet the latter did not allow an appeal to be taken therefrom ratiocinating that the questioned orders were interlocutory, and therefore, not appealable; and 2.The CA ignored and violated the Supreme Court's ruling in Heirs of Yaptinchay v. Del Rosario 28 which held that a declaration of heirship must be made in a special proceeding and not in a civil action. We find the petition bereft of merit. DEcITS At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA decision. Petitioner should have filed a petition for review on certiorari under Rule 45 of the Rules of Court. Simply imputing in a petition that the decision sought to be reviewed is tainted with grave abuse of discretion does not magically transform a petition into a special civil action for certiorari. The CA decision disposed of the merits of a special civil action, an original petition, filed thereat by herein respondents. That disposition is a final and executory order, appealable to, and may be questioned before, this Court by persons aggrieved thereby, such as petitioner Valente, via Rule 45. On this score alone, the petition should have been dismissed outright. However, we have disregarded this procedural flaw and now resolve this case based on the merits or lack thereof. Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to a trickery to prevent an appeal against a final order by claiming that the appealed order is merely interlocutory and later maintain that the same order has become final after declaring it to be interlocutory." We reject petitioner's paltry contention. Petitioner apparently does not comprehend the distinction between an interlocutory order which is final and executory, and a final order which disposes of the controversy or case; much less, understand the available remedies therefrom.

We agree with [herein respondents]. EIAScH On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the decision of the Court of Appeals and mandates that Civil Case No. 51203 be reinstated in order to determine the portion in the estate which belongs to Teofista Suarez. The sale of the parcels of land was declared null and void. Necessarily, the title (TCT No. 5809) in the name of respondents was also declared null and void. . . . xxx xxx xxx Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on January 22, 1996 and on motion of [herein respondents], issued an order to execute/enforce the decision of the Supreme Court . . . . xxx xxx xxx [Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice of appeal on the order of Judge Santos. The appeal, on motion of [herein respondents] was denied on September 10, 1996. Obviously, the decision of the Supreme Court had become final and executory. Likewise, both orders of Judge Santos dated May 29, 1996 denying the motion for reconsideration and the denial of the notice of appeal dated September 6, 1996 had also become final and executory.

We have defined an interlocutory order as referring to something between the commencement and the end of the suit which decides some point or matter but it is not the final decision on the whole controversy. 29 It does not terminate or finally dismiss or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits. 30 Upon the other hand, a final order is one which leaves to the court nothing more to do to resolve the case. 31 On more than one occasion, we laid down the test to ascertain whether an order is interlocutory or final i.e., "Does it leave something to be done in the trial court with respect to the merits of the case?" If it does, it is interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is something more to be done on the merits of the case. 32 The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are interlocutory, and therefore, not appealable, as they leave something more to be done on the merits of the case. In fact, in paragraph (d) of Judge Santos' Order dated May 29, 1996, herein respondents were directed to submit evidence showing settlement of the estate of the deceased Marcelo Sr. IDTcHa Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction between an interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying petitioner Valente's Notice of Appeal attained finality when he failed to file a petition for certiorari under Rule 65 of the Rules of Court. We cannot overemphasize the rule that the correct identification of the nature of an assailed order determines the remedies available to an aggrieved party. The old Rules of Court in Section 2, Rule 41 reads, thus: SEC. 2.Judgments or orders subject to appeal. Only final judgments or orders shall be subject to appeal. No interlocutory or incidental judgment or order shall stay the progress of an action, nor shall it be the subject of appeal until final judgment or order is rendered for one party or the other. xxx xxx xxx With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for the appropriate remedy to be taken from an interlocutory order, thus:

SEC. 1.Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: xxx xxx xxx (c)An interlocutory order; xxx xxx xxx In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the Orders dated May 29, 1996 and September 6, 1996 was in order. Thus, the CA decision affirming the RTC's denial was correct. ECaScD Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition for certiorari from the CA decision in CA-G.R. SP No. 58090, which is not an interlocutory order. It is a final order which completely disposed of the merits of the case with nothing more left to be done therein. The correct and available remedy available to petitioner Valente was, as previously discussed, a petition for review on certiorari under Rule 45 of the Rules of Court. In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to appeal the interlocutory orders of the RTC which are unappealable. Thus, the RTC properly denied his Notice of Appeal, and the CA correctly upheld the RTC. He should have filed a petition for certiorari; under Rule 65. On the other hand, from the final order of the CA, he comes before this Court on a petition for certiorari under Rule 65, when the proper remedy is an appeal by certiorari under Rule 45. In the recent case of Jan-Dec Construction Corporation v. Court of Appeals 33 we ruled in this wise:

As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review under Rule 45 of the Rules. Under Rule 45, decisions, final orders or resolutions of the CA in any case,i.e., regardless of the nature of the action or proceedings involved, may be appealed to the Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. It seeks to correct errors of judgment committed by the court, tribunal, or officer. In contrast, a special civil action for certiorari under Rule 65 is an independent action based on the specific grounds therein provided and proper only if there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. It is an extraordinary process for the correction of errors of jurisdiction and cannot be availed of as a substitute for the lost remedy of an ordinary appeal. Independently of this procedural infirmity, even on the merits of the case, the petition does not fare otherwise. It must be dismissed for lack of merit. AHEDaI Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del Rosario, 34 herein respondents must first be declared heirs of Marcelo Sr. before they can file an action to annul the judicial sale of what is, undisputedly, conjugal property of Teofista and Marcelo Sr. We disagree. Our ruling in Heirs of Yaptinchay is not applicable. Herein respondents' status as legitimate children of Marcelo Sr. and Teofista and thus, Marcelo Sr.'s heirs has been firmly established, and confirmed by this Court in Suarez v. Court of Appeals. 35 True, this Court is not a trier of facts, 36 but as the final arbiter of disputes, 37 we found and so ruled that herein respondents are children, and heirs of their deceased father, Marcelo Sr. This having been settled, it should no longer have been a litigated issue when we ordered a remand to the lower court. In short, petitioner Valente's, Violeta's, Virginia's, and Maria Concepcion's representation in the RTC that our ruling in Suarez required herein respondents to present evidence of their affiliation with the deceased, Marcelo Sr., is wrong. As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is reinstated only to determine that portion which belongs to [herein

respondents] and to annul the sale with regard to said portion." There is clearly no intimation in our decision for the RTC to have to determine an already settled issue i.e., herein respondents' status as heirs of Marcelo Sr.

(2)If the husband should die after the filing of the complaint, without having desisted from the same; (3)If the child was born after the death of the husband. Art. 263.The action to impugn the legitimacy of the child shall be brought within one year from the recording of birth in the Civil Register, if the husband should be in the same place, or in a proper case, any of his heirs. If he or his heirs are absent, the period shall be eighteen months if they should reside in the Philippines; and two years if abroad. If the birth of the child has been concealed, the term shall be counted from the discovery of the fraud. AEIDTc Art. 265.The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. Art. 266.In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child. In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCT's was dismissed for failure of the petitioners to demonstrate "any proof or even a semblance of it" that they had been declared the legal heirs of the deceased couple, the spouses Yaptinchay. In stark contrast, the records of this case reveal a document, an Extrajudicial Settlement of Marcelo Sr.'s estate, which explicitly recognizes herein respondents as Marcelo Sr.'s legitimate children and heirs. The same document settles and partitions the estate of Marcelo Sr. specifying Teofista's paraphernal properties, and separates the properties she owns in common with her children, herein respondents. Plainly, there is no need to re-declare herein respondents as heirs of Marcelo Sr., and prolong this case interminably. Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the subject properties only by virtue of an execution sale to recover Teofista's judgment obligation. This judgment obligation is solely Teofista's, and payment therefor cannot be made through an execution sale of properties not absolutely owned by her. These properties were evidently conjugal

properties and were, in fact, even titled in the name of Marcelo, Sr. married to Teofista. Thus, upon Marcelo Sr.'s death, by virtue of compulsory succession, Marcelo Sr.'s share in the conjugal partnership was transmitted by operation of law to his compulsory heirs. Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article 778 43 of the Civil Code. It reserves a portion of the net estate of the decedent in favor of certain heirs, or group of heirs, or combination of heirs, prevailing over all kinds of succession. 44 The portion that is so reserved is the legitime. Article 886 of the Civil Code defines legitime as "that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs." Herein respondents are primary compulsory heirs, 45 excluding secondary compulsory heirs, 46 and preferred over concurring compulsory heirs in the distribution of the decedent's estate. 47 EaCSTc Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate in 1957, it must be stressed that herein respondents' rights to the succession vested from the moment of their father's death. 48 Herein respondents' ownership of the subject properties is no longer inchoate; it became absolute upon Marcelo's death, although their respective shares therein remained pro indiviso. Ineluctably, at the time the subject properties were sold on execution sale to answer for Teofista's judgment obligation, the inclusion of herein respondents' share therein was null and void. In fine, Teofista's ownership over the subject properties is not absolute. Significantly, petitioner Valente does not even attempt to dispute the conjugal nature of the subject properties. Since Teofista owns only a portion of the subject properties, only that portion could have been, and was actually, levied upon and sold on auction by the provincial sheriff of Rizal. Thus, a separate declaration of heirship by herein respondents is not necessary to annul the judicial sale of their share in the subject properties. We note the recent case of Portugal v. Portugal-Beltran, 49 where we scrutinized our rulings in Heirs of Yaptinchay and the cited cases of Litam v. Rivera 50 and Solivio v. Court of Appeals, 51 and Guilas v. CFI Judge of Pampanga 52 cited in Solivio. We ruled thus: The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or parties to the special proceedings for its settlement is that if the special proceedings are pending, or if there are no special proceedings filed but there is,

Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein respondents as legitimate children of Marcelo Sr. and Teofista, and likewise demand that herein respondents first prove their filiation to Marcelo Sr. The following records bear out Marcelo, Sr.'s and Teofista's paternity of herein respondents, and the latter's status as legitimate children: 1.The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein respondents, questioned the RTC, Branch 151's Orders dated October 10, 1984 and October 14, 1986. Although the CA ruled against Teofista and herein respondents, it explicitly recognized the latter's status as legitimate children of Teofista and Marcelo Sr.; and 38 acHITE 2.The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein respondents were, as children of Teofista, merely successors-ininterest of the latter to the property and by virtue thereof, bound by the judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine of res judicata. 39 We subsequently reversed this ruling on the wrong application of res judicata in the conclusive case of Suarez. We retained and affirmed, however, the CA's factual finding of herein respondents' status as heirs of Marcelo Sr. We categorically held therein that "the proprietary interest of [herein respondents] in the levied and auctioned [properties] is different from and adverse to that of [Teofista]. [Herein respondents] became co-owners of the property not because of [Teofista] but through their own right as children of their deceased father [, Marcelo Sr.]." Clearly, herein respondents' long possessed status of legitimate children of Marcelo Sr. and Teofista cannot be indirectly or directly attacked by petitioner Valente in an action to annul a judicial sale. Articles 262, 40 263, 41 265 and 266 42 of the Civil Code, the applicable law at the time of Marcelo's death, support the foregoing conclusion, to wit: Art. 262.The heirs of the husband may impugn the legitimacy of the child only in the following cases: (1)If the husband should die before the expiration of the period fixed for bringing his action;

under the circumstances of the case, a need to file one, then the determination of, among other issues, heirship should be raised and settled in said special proceedings. Where special proceedings had been instituted but had been finally closed and terminated, however, or if a putative heirs has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased. aCIHAD In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugal's estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section of the Revised Rules of Court. Said rule is an exception to the general rule that when a person dies leaving property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein. xxx xxx xxx It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an administration proceedings. And it is superfluous in light of the fact that the parties to the civil case subject of the present case, could and had already in fact presented evidence before the trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial. In fine, under the circumstances of the present case, there being no compelling reason to still subject

Portugal's estate to administration proceedings since a determination of petitioners' status as heirs could be achieved in the civil case filed by petitioners . . . . 53 All told, under the circumstances, in addition to the already settled status of herein respondents as heirs of Marcelo Sr., there is no need to dismiss Civil Case No. 51203 and require herein respondents to institute a separate special proceeding for a declaration of their heirship. WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 58090 is AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are REINSTATED. Costs against the petitioner. SO ORDERED. Puno, C.J., * Ynares-Santiago, Austria-Martinez and Chico-Nazario, JJ., concur.

illegitimate child other than natural to inherit must be first recognized voluntarily or by court action is well settled in Our Jurisprudence (Bercilles vs. GSIS, 128 SCRA 53 [1984]). 2.ID.; PERSONS; CLASSIFICATION OF ILLEGITIMATE CHILDREN; TO CLASSIFY UNRECOGNIZED NATURAL CHILDREN UNDER THE CLASS OF SPURIOUS CHILDREN IS NOT LEGALLY POSSIBLE. There are two (2) general classifications of illegitimate children or those who are conceived and born out of wedlock. They may be either natural (actually or by fiction) or spurious (the incestuous, adulterous or illicit). Natural children are defined as those born outside of wedlock of parents, who at the time of conception of the former, were not disqualified by any impediment to many each other (Article 269, New Civil Code). On the other hand, spurious children are those born of parents, who at the time of their conception, are disqualified to marry each other on account of certain impediment. Because of this basic distinction between these children, it is not legally class possible to classify unrecognized natural children under the class of spurious children. 3.ID.; ID.; ILLEGITIMATE CHILDREN OTHER THAN NATURAL, UNDER ARTICLE 287 OF THE CIVIL CODE; REFERS TO NATURAL CHILD PROPER BY BIRTH AND WHO HAVE NOT SECURED RECOGNITION. Besides, commentators construe the phrase "illegitimate children other than natural" as excluding from the grants of rights under Article 287 of the New Civil Code those children who are natural child proper by birth and who have not secured voluntary or compulsory recognition (p. 276. An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. 1). They fall within the scope of the definition of natural children enumerated in Article 269, New Civil Code (p. 142, Civil Law. Reviewer, D. Jurado, 1982 ed.). 4.ID.; ID.; ID.; UNRECOGNIZED NATURAL CHILD HAS NO RIGHTS AGAINST PARENT OR HIS ESTATE; RIGHT SPRINGS FROM ACKNOWLEDGMENT BY THE NATURAL PARENTS. It is an elementary and basic principle under the old and new Civil Code, that an unrecognized natural child has no rights whatsoever against his parent or his estate. His rights spring not from the filiation itself, but from the child's acknowledgment by the natural parent (Alabat vs. Alabat, 21 SCRA 1479 [19671]). 5.ID.; ID.; ID.; RECOGNITION; CERTIFIED COPY OF BIRTH CERTIFICATE, NOT SUFFICIENT RECOGNITION. It can be seen from the record of birth (Exhibit "L-2") that the name of the petitioner was Irene Ramero, and signed by Genoveva Ramero and of an unknown father. This was certified to by the treasurer of the municipality of Alitagtag, Batangas (Exhibits "L" and "L-1"). Another certified copy of another birth certificate issued by the municipal

[G.R. No. 39537. March 19, 1985.] IRENE REYES (alias IRENE RAMERO, alias IRENE DELGADO), MOISES VILLANUEVA and GENOVEVA RAMERO, petitioners, vs. COURT OF APPEALS, PLACIDA DELGADO, DOMINGO DELGADO, PAULA. DELGADO and MAXIMINA DELGADO, respondents.

Ruben M. Orteza for petitioner. Leovigildo L. Cerilla for private respondents.

SYLLABUS 1.CIVIL LAW; SUCCESSION; ILLEGITIMATE CHILDREN; TO INHERIT, AN ILLEGITIMATE CHILD MUST BE RECOGNIZED. The doctrine that for an

treasurer and local civil registrar of the municipality of Alitagtag (Exhibit "20") stated therein that the name of the child is Irene Ramero, and the name of the father is "Francisco" and the mother "Genoveva Ramero." Any of these records of birth cannot be sufficient recognition under the law. 6.ID.; ID.; ID.; ID.; BIRTH CERTIFICATE MUST BE SIGNED EITHER JOINTLY BY THE FATHER AND MOTHER OR BY THE MOTHER ALONE. The birth certificate to be sufficient recognition must be signed by the father and mother jointly, or by the mother alone if the father refuses, otherwise she may be penalized (Sec. 5, Act 3753; Madredejo vs. De Leon, 55 Phil. 1 [1930]); and if the alleged father did not sign in the birth certificate. the placing of his name by the mother, or doctor or registrar is incompetent evidence of paternity of said child (Bercilles vs. GSIS, 128 SCRA 53 [1984], Roces vs. Local Civil Registrar of Manila, 102 Phil 1050 [1958]). Since any of the certificates of birth presented were not signed by Francisco Delgado, it cannot be taken as record of birth to prove recognition of Irene Delgado; nor can this birth certificate be taken as a recognition in a public instrument (Pareja vs. Pareja, 95 Phil. 167 [1954]). 7.ID.; ID.; ID.; ID.; CERTIFICATE OF BAPTISM IS NOT PROOF OF RECOGNITION. Irene's certificate of baptism (Exhibit "1") cannot be taken as proof of recognition (Bercilles vs. GSIS, supra; People vs. Villeza, 127 SCRA 349 [1984]; Cid vs. Burnaman, 24 SCRA 434 [1968]; Vudaurrazaga vs. CA, 91 Phil. 492 [1952]; Capistrano vs. Gabino, 8 Phil. 135 [1907]. In the case of Macadangdang vs. CA, 100 SCRA 73 [1980]), this Court said that while baptismal certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified, but not the veracity of the statements or declarations made therein with respect to his kinsfolk. 8.ID.; ID.; ID.; ID.; NEITHER STUDENT PERMANENT RECORD NOR WRITTEN CONSENT TO FATHER'S OPERATION CAN BE TAKEN AS AN AUTHENTIC WRITING. Irene's secondary student permanent record (Exhibits "12", "13", "15" and "16") nor the written consent given by Irene to the operation of her alleged father (Exhibit "4") cannot be taken as an authentic writing. An authentic writing does not have to be a public instrument; it is sufficient that it is genuine and not a forgery. It must generally be signed by the alleged parent (Madredejo vs. De Leon, supra) unless the whole instrument is in the handwriting of the alleged parent and the facts mentioned therein correspond to actual and real facts (Varela vs. Villanueva, 95 Phil. 248 [1954]). Thus, Irene's secondary student permanent record and her written consent to the operation of her father not being signed nor written in the handwriting of Francisco Delgado cannot be taken as an authentic writing to prove her recognition by her alleged father.

9.ID.; ID.; ID.; ID.; MARRIAGE CONTRACT WHERE ALLEGED FATHER GAVE CONSENT CANNOT BE TAKEN AS AUTHENTIC WRITING. The marriage contract (Exhibit "17") of Irene Delgado and Moises Villanueva wherein it was stated that Francisco Delgado gave his consent or advice for Irene Delgado to marry and that he was her father cannot be also taken as recognition in an authentic document because it was not signed nor in the handwriting of Francisco Delgado. It cannot also be taken as recognition in a public instrument as held in the case of Lim vs. C.A. (65 SCRA 161, 165 [1975]). 10.ID.; ID.; ID.; ID.; FAMILY PICTURES ARE NOT SUFFICIENT FOR RECOGNITION. The family pictures (Exhibits "11" to "11-E") presented by Irene showing Irene posing with Francisco Delgado cannot be a sufficient proof of recognition. In the case of Bercilles vs. GSIS, supra, it was held that pictures do not constitute proof of filiation. 11.ID.; ID.; ID.; ID.; CHILD HAS RIGHT TO COMPEL JUDICIAL RECOGNITION; MUST BE BROUGHT WITHIN THE PROPER PRESCRIPTIVE PERIOD. She nevertheless possesses the right to compel judicial recognition and the action for this must be brought within the proper prescriptive period (Clemea vs. Clemea, supra). Article 285 of the New Civil Code provides "that the action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except when the father or mother dies during the minority of the child, the action shall be brought within four years from the age of majority, or if after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child, the action shall be brought within four years from the finding of the document." Since Irene was already of age (35 years old) when her alleged father died, and she had not presented any discovered document wherein her presumed father recognized her, the action to compel recognition is already barred (Canales vs. Arrogante, 91 Phil. 6 [1952]). AQUINO, J., dissenting opinion: 1.CIVIL LAW; ILLEGITIMATE CHILDREN; RECOGNITION; VOLUNTARY OR COMPULSORY RECOGNITION OF SPURIOUS CHILDREN OR BASTARDS IS NOT MANDATORY. In my opinion the rule requiring voluntary or compulsory recognition for the so-called spurious children or bastards is not mandatory. Article 289 of the Civil Code does not make such recognition mandatory.

2.ID.; SUCCESSION; SPURIOUS CHILDREN; MAY INHERIT BY PROVING FILIATION ACCORDING TO RULES ON ACKNOWLEDGMENT FOR NATURAL CHILDREN. Irene's status as an heir is governed by the Civil Code pursuant to its Article 2264. To enjoy successional rights, she has to prove her filiation as required in Article 887 of the Civil Code. To prove filiation, the rules on acknowledgment for natural children may be applied to spurious children. But there may be cases, where the filiation of an illegitimate child, other than natural, has been duly proven and such proof does not satisfy the requirements of recognition under Articles 278 and 283. 3.ID.; ID.; ID.; ARTICLES 278 AND 283 ADMIT EXCEPTIONS; SUFFICIENT PROOF OF FILIATION ENTITLES THE CHILD TO SUCCESSIONAL RIGHTS; CASE AT BAR. In such exceptional cases, Articles 278 and 283 should not be applied. If sufficient proof to satisfy the judicial mind has been adduced to prove the spurious child's filiation, he or she should be entitled to successional rights. This is justified by the liberal policy of the Civil Code towards illegitimate children. The natural child needs acknowledgment because he may become a legitimated child. The spurious child will never attain the status of a legitimate child. I agree with Judge Lorenzo Relova that Irene's filiation as Francisco Delgado's child was duly proven within the meaning of Article 887. She is the nearest compulsory and legal heir of Francisco. She excludes the brother, two sisters and niece of Francisco (Art. 988, Civil Code).

DECISION

MAKASIAR, J p: This is a petition for certiorari to review the decision of the Court of Appeals Special Division of Five dated October 7, 1974 in CA-G.R. No. L-44964-R, reversing the decision of the Court of First Instance of Batangas, Branch I, dated December 26, 1969, in Civil Case No. 1144 dismissing the action for reconveyance. cdrep On January 29, 1967, private respondents as plaintiffs filed a complaint in the Court of first Instance of Batangas praying that the defendant Irene Reyes, alias Irene Romero or Irene Delgado, be ordered to execute a deed of

reconveyance in favor of plaintiffs Placida Delgado, Domingo Delgado, and Paula Delgado over four parcels of land located in Tayabas, Quezon, and one parcel of land located in Pagbilao, Quezon, and another deed of reconveyance in favor of plaintiff Maximina Delgado over three parcels of land located in Alitagtag, Batangas. It was alleged in the complaint that the defendants thru abuse of confidence, fraud, deceit, misrepresentation and other falsifications succeeded in registering in the offices of the Register of Deeds of Quezon and Batangas a document of self-adjudication (Exhibit "24"), wherein defendant Irene Delgado alleged that she was the sole child of the deceased Francisco Delgado and entitled to inherit the parcels of lands described in the complaint; that as a result thereof Transfer Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489 were cancelled and new Transfer Certificates of Title were issued in the name of Irene Delgado; that defendant Irene Delgado is not the illegitimate daughter of Francisco Delgado, who died without issue, but is the legitimate daughter of Genoveva Romero and Justino Reyes; that plaintiffs Placida Delgado, Domingo Delgado and Paula Delgado, sisters and brother of the deceased Francisco Delgado are the heirs entitled to inherit from Francisco Delgado; and that Paula, Placido and Domingo Delgado defrayed the expenses of the last illness and the funeral expenses of Francisco Delgado and for the purpose they borrowed the sum of P7,000.00 from their niece, plaintiff Maximina Delgado, and to pay Maximina Delgado they conveyed to her the three parcels of land described in subparagraphs (f) to (g) of paragraph 9 of the complaint. They also alleged that the defendant spouses Irene and Moises Villanueva borrowed from plaintiffs common fund the sum of P23,000.00 which they used in the purchase of a parcel of land (pp. 1-14, Record on Appeal; p. 63, rec.). cdll On or about March 2, 1967, defendant Irene Delgado, one of the petitioners herein, filed an answer to the complaint and set up the affirmative defense that she is the illegitimate daughter of the defendant Genoveva Romero and the deceased Francisco Delgado; that for several years preceding the birth of Irene Delgado, her mother Genoveva Ramero had separated from her lawful husband Justino Reyes and never reconciled since then; and that Irene was born during the cohabitation of Francisco Delgado and Genoveva Ramero as common-law husband and wife, and since her birth, lived with Francisco Delgado and Genoveva Ramero, who reared and treated her as their child, maintaining her and sending her through college. Defendants also denied having contracted a debt of P23,000.00 from plaintiffs, or that plaintiffs spent for the last illness and funeral of Francisco Delgado. Irene Delgado likewise set up a counterclaim, alleging that, as the illegitimate daughter of Francisco Delgado, she has the right to represent her father to the inheritance left by her grandmother (pp. 15-43, Record on Appeal; p. 63, rec.).

On March 16, 1967, the plaintiffs thru counsel filed an answer to the counterclaim denying that the defendant Irene Delgado was the illegitimate child of Francisco Delgado, and hence has no right to claim from the estate of Francisco's mother, Benigna Castillo, and that the properties claimed by the defendant Irene Delgado no longer formed part of the estate of Benigna Castillo as she had previously disposed of them during her lifetime (pp. 43-46, Record on Appeal; p. 63, rec.). On August 15, 1967, a pre-trial in Civil Case No. 1144 was conducted. On March 25, 1969, the plaintiffs filed a motion to admit an amended answer to the counterclaim posed by defendant, wherein the plaintiffs alleged that the counterclaim of the defendant, in so far as it would have the effect of being an indirect action for acknowledgment, has already prescribed (pp. 50-55, Record on Appeal; p. 63, rec.). On April 14, 1969, the lower court admitted the amended answer to the counterclaim over the objections of the defendant (pp. 56-61, Record on Appeal; p. 63, rec.). LibLex After trial on the merits, the Court rendered its decision on December 26, 1969 dismissing the action for reconveyance and declaring defendant Irene Delgado the lawful owner of the eight parcels of land. The counterclaim of Irene Delgado was dismissed for insufficiency of evidence. Both parties appealed to the Court of Appeals (now IAC), the plaintiffs with respect to their complaint and the defendants with respect to their counterclaim. The then Court of Appeals sitting as a Special Division of Five rendered its decision on October 7, 1974, the dispositive portion of which reads as follows: "Wherefore, the decision of the court a quo is hereby reversed The deed of self-adjudication executed by Irene Delgado is hereby declared null and void and set aside. The transfer certificates of title issued in the name of Irene Delgado in lieu of Transfer Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489 are hereby canceled, and T.C.T. 9913, 10348, 14937, T-11747 and 13489 are reinstated in the name of Francisco Delgado. Likewise, the extrajudicial declaration executed by Irene Delgado adjudicating to herself the 3 parcels of land

located in Alitagtag, Batangas, with Tax Declaration Nos. 8625, 8626 and 8627 are declared null and void. No costs" (pp. 52-53, rec.). The then Court of Appeals in arriving at this decision found that, although Irene Delgado was the spurious daughter of Francisco Delgado, she nevertheless cannot merit from the estate of the deceased Francisco Delgado because she was not recognized either voluntarily or by court action (pp. 5253, rec.). The titles to the questioned lot however cannot be executed in favor of the plaintiffs; because in so doing it will be in effect a recognition by the court that the plaintiffs are the only heirs of Francisco Delgado to the prejudice of other possible heirs or creditors of the deceased. As to alleged loan contracted by Irene from the plaintiffs, the then Court of Appeals affirmed the lower court's decision that it was without merit, because if it were true, the plaintiffs could have demanded a receipt for such a big amount. The counterclaim of Irene that she has the share to the inheritance of Benigna Castillo, Francisco Delgado's mother, and her alleged share in the expenses for the sickness and funeral of Francisco Delgado which was advanced by the plaintiffs, need not be ruled upon because of the findings that Irene is not an heir of Francisco Delgado (pp. 57-58, rec.). prLL On December 2, 1974, defendants, petitioners herein, filed a petition to review the decision of the Court of Appeals (pp. 22-37, rec.). On January 2, 1975, the plaintiffs, respondents herein, submitted their comment on the petition for review filed by the petitioner (pp. 67-71, rec.). On January 15, 1975, the petition for review filed by petitioners was denied in a resolution by the First Division of the Supreme Court for lack of merit (p. 75, rec.). On February 18, 1975, petitioners filed a motion for reconsideration (pp. 86113, rec.). On April 5, 1975, respondents filed their comments on the motion for reconsideration filed by petitioners (pp. 130-134, rec.).

On April 23, 1975, petitioners filed their reply to respondents' comment (pp. 118-125, rec.). On May 23, 1975, the Supreme Court reconsidered its resolution denying petitioners' motion for reconsideration (p. 142, rec.). In their petition, petitioners sought to reverse the decision of the Court of Appeals raising the following arguments: 1."There are strong and cogent reasons why this Honorable Court must return to and even enhance the doctrine in Zuzuarregui vs. Zuzuarregui, considering serious flaws in the reasoning of the currently prevailing doctrine, so that assuming arguendo and pro hac vice that Irene was not duly recognized or acknowledged as illegitimate child, she is nevertheless entitled to successional rights as sole heir of the late Francisco Delgado, considering that her filiation as illegitimate daughter of Francisco Delgado is undisputed and beyond question" (p. 12, Petitioner's Brief; p. 164, rec.). 2."Upon the other hand, this time assuming arguendo and pro hac vice that under the Civil Code recognition of an 'other illegitimate' is a pre-requisite to enjoyment of rights, Irene Delgado was legally acknowledged by her father Francisco Delgado, specially by his consent or advice to her marriage with Moises Villanueva contrary to the erroneous conclusions of the Court of Appeals" (p. 39, Petitioner's Brief, p. 164, rec.). The petition is without merit. The doctrine that for an illegitimate child other than natural to inherit must be first recognized voluntarily or by court action is well settled in Our jurisprudence. (Bercilles vs. GSIS, 128 SCRA 53 [1984]; Divinagracia vs. Rovira, 72 SCRA 307 [1976]; Clemea vs. Clemea, 24 SCRA 720 [1968]; Noble vs. Noble, 18 SCRA 1104 [1966]; Republic vs. Workmen's Compensation Commission, 13 SCRA 272 [1969]; Paulino vs. Paulino, 3 SCRA 730 [1961]; Barles vs. Ponce Enrile, 109 Phil. 522 [1960]). Cdpr

There is no reason to overturn this doctrine and revert to what was enunciated in the case of Zuzuarregui vs. Zuzuarregui (103 Phil. 346 [1958]); as suggested by herein petitioners in their first assignment of errors. It is the contention of the petitioners that the silence of the Civil Code as to the recognition of illegitimate children other than natural, in contrast to natural children who are expressly required to be recognized in order to inherit, only meant that illegitimate children need not be recognized in order to inherit from his or her alleged parent (p. 13, Petitioner's Brief; p. 164, rec.). Petitioners also raised the argument that under Article 287 of the New Civil Code which reads: "Illegitimate children other than natural in accordance with Article 269 and other than natural children by legal fiction are entitled to support and such successional rights as are granted in this code." The term "other illegitimate children" refers not only to those who are not natural or merely adulterous or incestuous but also includes natural children who were not acknowledged or recognized (p. 18, Petitioner's Brief; p. 164, rec.). In other words, unrecognized natural children can inherit not the share of a natural child but the share of a spurious child so long as his filiation shall be duly proved. So, in effect, illegitimate children need only to prove his filiation to inherit and such does not place him in a more advantageous position than natural children, as they are placed in the same situation.

'. . . the writers of the code no doubt had in mind that there would arise instances where certain illegitimate children, on account of the strong temptation due to the large estates left by deceased persons, would attempt to establish that they were natural children of such persons in order to get part of the property, and furthermore, they considered that it is nothing but just and right that alleged parents should have a personal opportunity to be heard. It was for these reasons and others equally as well founded that Article 137 was enacted'" (p. 724). There are two (2) general classifications of illegitimate children or those who are conceived and born out of wedlock. They may be either natural (actually or by fiction) or spurious (the incestuous, adulterous or illicit). Natural children are defined as those born outside of wedlock of parents, who at the time of conception of the former, were not disqualified by any impediment to marry each other (Article 269, New Civil Code). On the other hand, spurious children are those born of parents, who at the time of their conception, are disqualified to marry each other on account of certain impediment. Because of this basic distinction between these children, it is not legally possible to classify unrecognized natural children under the class of spurious children. Besides, commentators construe the phrase "illegitimate children other than natural" as excluding from the grants of rights under Article 287 of the New Civil Code those children who are natural child proper by birth and who have not secured voluntary or compulsory recognition (p. 276, An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. 1). They fall within the scope of the definition of natural children enumerated in Article 269, New Civil Code (p. 142, Civil Law Reviewer, D. Jurado, 1982 ed.). Lastly, to follow petitioners' contention will not be in accordance with the consistent pronouncements of this Court. It is an elementary and basic principle under the old and new Civil Code, that an unrecognized natural child has no rights whatsoever against his parent or his estate. His rights spring not from the filiation itself, but from the child's acknowledgment by the natural parent (Alabat vs. Alabat, 21 SCRA 1479 [1967]; Mise vs. Rodriguez, 95 Phil. 396 [1954]; Magallanes vs. CA, 95 Phil. 797 [1954]; Canales vs. Ugarte, 91 Phil. 6 [1952]; Malonda vs. Malonda, 81 Phil. 149 [1948]; Buenaventura vs. Urbano, 5 Phil. 1 [1905]). As to the second assignment of error raised by petitioners, We find that there was no sufficient legal recognition of petitioner Irene Delgado by Francisco Delgado. It can be seen from the record of birth (Exhibit "L-2") that the name of the petitioner was Irene Ramero, and signed by Genoveva Ramero and of an unknown father. This was certified to by the treasurer of the municipality of

WE do not find these arguments persuasive. Though the Civil Code is silent with respect to spurious children as to their recognition, this Court, in applying the rules of recognition, applicable to natural children, to said spurious children, declared in Clemea vs. Clemea, supra that: "The considerations of fairness and justice that underlie the time limit fixed in Article 285 of the Civil Code for actions seeking compulsory acknowledgment of natural children are fully applicable, if not more, to actions to investigate and declare the paternity of illegitimate children that are not natural. The motive that led the codifiers to restrict the period for bringing action for compulsory recognition of natural children were stated by this Court in Serrano vs. Aragon, 22 Phil. 18, to be as follows:

Alitagtag, Batangas (Exhibits "L" and "L-1"). Another certified copy of another birth certificate issued by the municipal treasurer and local civil registrar of the municipality of Alitagtag (Exhibit "20") stated therein that the name of the child is Irene Ramero, and the name of the father is "Francisco" and the mother "Genoveva Ramero." Any of these records of birth cannot be sufficient recognition under the law. The birth certificate, to be sufficient recognition, must be signed by the father and mother jointly, or by the mother alone if the father refuses, otherwise she may be penalized (Sec. 5, Act 3753; Madredejo vs. De Leon, 55 Phil. 1 [1930]); and if the alleged father did not sign in the birth certificate, the placing of his name by the mother, or doctor or registrar, is incompetent evidence of paternity of said child (Bercilles vs. GSIS, 128 SCRA 53 [1984]; Roces vs. Local Civil Registrar of Manila, 102 Phil. 1050 [1958]). Since any of the certificates of birth presented were not signed by Francisco Delgado, it cannot be taken as record of birth to prove recognition of Irene Delgado; nor can this birth certificate be taken as a recognition in a public instrument (Pareja vs. Pareja, 95 Phil. 167 [1954]). Irene's certificate of baptism (Exhibit "1") cannot be taken as proof of recognition (Bercilles vs. GSIS, supra, People vs. Villeza, 127 SCRA 349 [1984]; Cid vs. Burnaman, 24 SCRA 434 [19681; Vudaurrazaga vs. CA, 91 Phil. 492 [1952]; Capistrano vs. Gabino, 8 Phil. 135 [1907]). In the case of Macadangdang vs. CA [100 SCRA 73 [1980]), this Court said that while baptismal certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified, but not the veracity of the statements or declarations made therein with respect to his kinsfolk. LLpr Irene's secondary student permanent record (Exhibits "12", "13", "15" and "16") nor the written consent given by Irene to the operation of her alleged father (Exhibit "4") cannot be taken as an authentic writing. An authentic writing does not have to be a public instrument; it is sufficient that it is genuine and not a forgery. It must generally be signed by the alleged parent (Madredejo vs. De Leon, supra) unless the whole instrument is in the handwriting of the alleged parent and the facts mentioned therein correspond to actual and real facts (Varela vs. Villanueva, 95 Phil. 248 [1954]). Thus, Irene's secondary student permanent record and her written consent to the operation of her father, not being signed nor written in the handwriting of Francisco Delgado, cannot be taken as an authentic writing to prove her recognition by her alleged father. The marriage contract (Exhibit "17") of Irene Delgado and Moises Villanueva, wherein it was stated that Francisco Delgado gave his consent or advice for Irene Delgado to marry, and that he was her father cannot be also taken as recognition in an authentic document because it was not signed nor in the

handwriting of Francisco Delgado. It cannot also be taken as recognition in a public instrument as held in the case of Lim vs. CA, (65 SCRA 161, 164 [1975]) wherein the Court said: "According to Article 1216 of the Civil Code of 1889, public documents are those authenticated by a notary or by a competent public official, with the formalities required by law.' Thus, 'there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office.' "The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class.' "The marriage contract presented by Felisa Lim does not satisfy the requirements of solemnity prescribed by article 131 of the Civil Code of 1889. Such contract is not a written act with the intervention of a notary; it is not an instrument executed in due form before a notary and certified by him. The marriage contract is a mere declaration by the contracting parties, in the presence of the person solemnizing the marriage and of two witnesses of legal age, that they take each other as husband and wife, signed by signature or mark by said contracting parties and the said witnesses, and attested by the person solemnizing the marriage. The marriage contract does not possess the requisites of a public document of recognition . . ." The family pictures (Exhibits "11" to "11-E") presented by Irene, showing Irene posing with Francisco Delgado, cannot be a sufficient proof of recognition. In the case of Bercilles vs. (GSIS, supra, it was held that pictures do not constitute proof of filiation. What Irene may have proved is that she had been in continuous possession of a status of an illegitimate child who is not natural. But such fact alone without a valid recognition in a record of birth, will, statement before a court of record, or authentic writing does not make Irene a recognized illegitimate child who is not natural. She nevertheless possesses the right to compel judicial recognition and the action for this must be brought within the proper prescriptive period (Clemea vs. Clemea, supra). Article 285 of the New Civil Code provides "that the action for the recognition of natural children may be

brought only during the lifetime of the presumed parents, except when the father or mother dies during the minority of the child, the action shall be brought within four years from the age of majority, or if after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child, the action shall be brought within four years from the finding of the document." Since Irene was already of age (35 years old) when her alleged father died, and she had not presented any discovered document wherein her presumed father recognized her, the action to compel recognition is already barred (Canales vs. Arrogante, 91 Phil. 6 [1952]). WE affirm the findings of the then Court of Appeals that Irene Reyes has Irene Delgado is not an heir of the late Francisco Delgado. LLphil WHEREFORE, THE DECISION OF THE THEN COURT OF APPEALS IS HEREBY AFFIRMED IN TOTO, WITH COSTS AGAINST PETITIONERS. Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.

Separate Opinions AQUINO, J., dissenting: I dissent. The spouses Justino Reyes and Genoveva Ramero, natives of Tayabas town, were married there in 1903. They had seven children. An eighth child, named Irene, was born to Genoveva, either on May 5, 1930 in Tayabas town, or on September 1, 1931 in Barrio Dalipit, Alitagtag, Batangas. Of course, the presumption under article 255 of the Civil Code is that Irene was Justino's child. Was that presumption rebutted? Joaquin Reyes, Irene's elder brother, testified that his parents, the Reyes spouses, separated in 1928 when his father surprised Francisco Delgado in his house. On that occasion, there was a commotion in the house which was investigated by the police. Justino eventually decided to allow Genoveva to go with Francisco. That testimony is sufficient to rebut the presumption of legitimacy. It shows that Irene was not Justino's child. Was Delgado her father?

Her birth certificate shows that she was horn on September 1, 1931 as the child of Genoveva at Barrio Dalipit, Alitagtag, Batangas with an unknown (desconocido) father (Exh. L-2 or 22). prcd Since 1928, Genoveva lived with Francisco Delgado and was never reconciled to Justino who died in 1935. Irene was educated at their expense. Justino was not mentioned as the father of Irene in her record of birth. Among the eight children of Genoveva, Irene's birth was the only one registered in Alitagtag, Francisco's native town. Irene had always lived with Genoveva and Francisco up to 1951, when she was 19 and she got married. She was baptized in 1949, when she was 18. Francisco and Genoveva were listed as her parents in the baptismal certificate, Exhibit 1. In the certificate of marriage of Irene and Moises Villanueva, Francisco Delgado was mentioned as her father and as the one who gave consent to the marriage (Exh. 17). Irene consented to the operation of Francisco when he was submitted to an operation at the Family Clinic in 1966 (Exh. 2). The paid his hospital bills (Exh. 4). She used the surname "Delgado" in her school records and Francisco Delgado was indicated therein as her guardian (Exh. 12 to 16). Francisco died intestate on October 28, 1966. On November 25, 1966 Irene adjudicated to herself the lands left by Francisco (Exh. H or 9). On January 30, 1967, the brother, two sisters and a niece of Francisco Delgado sued her for the annulment of said adjudication. They sought a declaration that they are the nearest legal heirs of Francisco. Judge Lorenzo Relova ruled that Irene's filiation was duly proven. The Appellate Court disagreed because she was not duly acknowledged within the meaning of articles 278 and 283 of the Civil Code. It held that the evidence submitted by her does not amount to voluntary and compulsory recognition required of natural children. In my opinion the rule requiring voluntary or compulsory recognition for the socalled spurious children or bastards is not mandatory. Article 289 of the Civil Code does not make such recognition mandatory. Irene's status as an heir is governed by the Civil Code pursuant to its article 2264. To enjoy successional rights, she has to prove her filiation as required in article 887 of the Civil Code. To prove filiation, the rules on acknowledgment for natural children may be applied to spurious children. But

there may be cases, where the filiation of an illegitimate child, other than natural, has been duly proven and such proof does not satisfy the requirements of recognition under articles 278 and 283. In such exceptional cages, article 278 and 283 should not be applied. If sufficient proof to satisfy the judicial mind has been adduced to prove the spurious child's filiation, he or she should be entitled to successional rights. This is justified by the liberal policy of the Civil Code towards illegitimate children. LibLex The natural child needs acknowledgment because he may become a legitimated child. The spurious child will never attain the status of a legitimated child. I agree with Judge Lorenzo Relova that Irene's filiation as Francisco Delgado's child was duly proven within the meaning of article 887. She is the nearest compulsory and legal heir of Francisco. She excludes the brother, two sisters and niece of Francisco (Art. 988, Civil Code). I vote to reverse the decision of the Appellate Court and affirm the decision of Judge Relova. prcd [G.R. No. L-34395. May 19, 1981.] BEATRIZ L. GONZALEZ, petitioner, vs. COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDES, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DOA FILOMENA ROCES DE LEGARDA, respondents.

Eligio G. Lagman and Roberto A. Gianzon for petitioner. Teves, Campos, Mendoza and Hernandez Baizas, Alberto and Association, Macias and Achos for private-respondents.

SYNOPSIS The real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his two daughters and the heirs of his deceased son Benito Legarda y De La Paz who was survived by his widow, Filomena Roces y Legarda and their seven children: four daughters named, Beatriz, Rosario, Teresa and Filomena and their three sons, named Benito, Alejandro and Jose. Meanwhile. one of the daughters, Filomena, died intestate and without an issue and her mother Filomena Roces y Legarda who became her sole heir, partitioned their one-third share in the estate of Benito Legarda y Tuason with her six surviving children and then conveyed the properties she inherited from her deceased daughter by holographic will to her 16 grandchildren. In opposition thereto, one of the daughters Beatriz Legarda Gonzales filed a motion in the testate proceeding and an ordinary civil action in the lower court contending that the disputed properties are resersable properties. The lower court dismissed the complaint. On appeal by certiorari, the Supreme Court held that the properties in question are subject to raserva troncal under Art. 891 of the Civil Code which the testatrix as reservor could not dispose by holographic will to the reservees within the third degree (her sixteen grandchildren) and deprive the reservees in the second degree (her six children) of their share therein. Decision Reversed.

SYLLABUS 1.CIVIL LAW; SUCCESSION; LEGITIME; RESERVA TRONCAL; NATURE. Resersa troncal is also called lineal, familiar, extreordinaria o semi-troncal. It is provided for in Article 811 of the Spanish Civil Code now article 891 of the Civil Code. In reserva ironcal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third

degree from the deceased descendant (prepositus) who belong to the tine from which the property came. 2.ID.; ID.; ID.; ID.; TRANSMISSION INVOLVED. The three transmissions involved are: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Toneas, Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9). If there are only two transmissions there is no reserva. 3.ID.; ID.; ID.; ID.; PERSONS INVOLVED. The persons involved in reserva troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus ( propositus) who received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law and (4) the reservee (reservatarin) who is within the third degree from the prepositus and who belongs to the line (ltnea o tronco) from which the property came and for whom the property should be reserved by the reservor. 4.ID.; ID.; ID.; ID.; RELATIVES CONSIDERED RESERVEES. The reservees may be half-brothers and sisters (Rodrigues vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392). First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480). 5.ID.; ID.; ID.; ID.; RATIONALE. The rationale of reserva troncal is to avoid "el peligro de que bienes poseidos sedularmente por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de los enlaces y muertes prematuras", or "impedir que, por un azar de la vida, personas extraas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella" (6 Castan Tobeas, Derecho Civil, Part 1, 6th Ed., 1960, p. 203; Padura vs. Baldovino, 104 Phil. 1065).

6.ID.; ID.; ID.; ID.; PREPOSITUS DEFINED. Prepositus or the person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revolved by descent (Cabardo vs. Villanueva, 44 Phil. 186, 190). 7.ID.; ID.; ID.; ID.; NEAREST RELATIVE EXCLUDE THE MORE REMOTE. Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065). 8.ID.; ID.; ID.; ID.; NATURE OF RELATIONSHIP CONTEMPLATED. Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded. 9.ID.; ID.; ID.; ID.; GRATUITOUS TITLE DEFINED. Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession (Cabardo vs. Villanueva, 44 Phil. 186, 189190, citing 6 Manresa, Codigo Civil, 7th. Ed., 1951, p. 360). 10.ID.; ID.; ID.; ID.; RESOLUTORY CONDITIONS CREATED BY RESERVA. The reserva creates two resolutory conditions, namely: (I) the death of the ascendant obliged to reserve; and (2) the survival, at the time of his death, of relatives within the third degree belonging to the fine from which the property came (Sienes vs. Esparcia, 111 Phil. 349, 353). 11.ID.; ID.; ID.; ID.; NATURE OF RESERVOR'S TITLE. The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the time o the death of the reservor but become indefeasible when the reservees predecease the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil. 279). "The authorities are all agreed that there being reservatorios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." (J.B.L. Rayes in Cano vs. Director of Lands, 105 Phil. 1, 5). 12.ID.; ID.; ID.; ID.; RESERVOR'S TITLE COMPARED WITH THAT OF THE VENDEE A RETRO OR TO A FIDEICOMISO CONDICIONAL. The reservor's title has been compared with that of the vendee a retro in a pacto

de retro sale or to a fideicomiso condicional. The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. If there are no reservees at the time of the reservor's death, the transferee's title would become absolute (Lunsod vs. Ortega, 46 Phil. 664: Gueco vs. Lacson, 118 Phil. 944; Nono vs. Nequia, 93 Phil. 120). 13.ID.; ID.; ID.; ID.; NATURE OF RESERVEE'S TITLE. The reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecese the reservee. There is a holding that renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee survives the tetervor (Sienes vs. Esparcia, ill Phil. 349, 353). "The reservatorio receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime" (J.B.L. Reyes in Cano vs. Director of Lands, Supra). 14.ID.; ID.; ID.; ID.; RESERVEE'S (RESERVATORIO'S) RIGHT OVER THE PROPERTY DURING RESERVOR'S (RESERVISTA'S) LIFETIME. The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha, 48 Phil. 737; Edroso vs. Sablan 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944). "Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their revisionary right. and, for this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive." (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295)

15. ID.; ID.; ID.; ID.; RESERVABLE PROPERTY, NOT A PART OF THE ESTATE OF RESERVOR (RESERVISTA); CASE AT BAR. The right to reserva troncal is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista (reservor). It is likewise clear that the reservable property is no part of the estate of the reservista (raservor) who

may not dispose of them (it) by will, so long as there are reservatarios (reservees) existing (Arroyo vs. Gerona, 58 Phil. 226, 237). "The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa. subject to the condition that they must survive the reservista." (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-l1960, December 27, 1958, 104 Phil. 1065). Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cano vs. Director of Lands, Supra) Mrs. Filomena Legarda, as reservor in the case at bar could not convey in her holographic will to her sixteen grandchildren (the reservees within the third degree) the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cobardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor. 16.ID.; ID.; ID.; ID.; RESERVABLE PROPERTIES INHERITED FROM THE PREPOSITUS; CASE AT BAR. As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the prepositus, not from the reservor. Art. 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein. 17.ID.; ID.; ID.; ID.; WHEN RESERVATION IS EXTINGUISHED; CASE AT BAR. Under the rule of stare decisis at non quieta movere. the Court is bound to follow in this case the doctrine of the Florentino case which means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. Hence, in the case at bar, the reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate (Cano vs. Director of Lands, 105 Phil. 4).

DECISION

1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds; 1/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now Quezon City; 1/14th of the property described in TCT No. 966 of the registry of deeds of Baguio; 1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila registry of deeds; 1/7th of the lots and improvements at 181 San Rafael described in TCT Nos. 50495 and 48161 of the Manila registry of deeds; 1/7th of the property described in TCT No. 48163 of the Manila registry of deeds (Streets); 1/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of deeds (Streets and Estero); 2/21st of the property described in TCT No. 13458 of the registry of deeds of Tayabas. These are the properties in litigation in this case. As a result of the affidavit of adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda as co-owner of the properties held proindiviso by her other six children. Mrs. Legarda on March 6, 1953 executed two hand-written identical documents wherein she disposed of the properties, which she inherited from her daughter, in favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The document reads: "A mis hijos: "Dispongo que se reparta a todos mis nietos, hijos de Ben, Mandu y Pepito, los bienes que he heredado de mi difunta hija Filomena y tambien los acciones de la

AQUINO, J p: Beatriz Legarda Gonzalez appealed from the decision of the Court of First Instance of Manila, dismissing her complaint for partition, accounting, reconveyance and damages and holding, as not subject to reserva troncal, the properties which her mother Filomena Roces inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are as follows: Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died in Manila on June 17, 1933. He was survived by his widow, Filomena Roces, and their seven children: four daughters named Beatriz, Rosario, Teresa and Filomena and three sons named Benito, Alejandro and Jose. On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y De la Paz who were represented by Benito F. Legarda. Filomena Legarda y Roces died intestate and without issue on March 19, 1943. Her sole heiress was her mother, Filomena Roces Vda. de Legarda. Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. The said properties consist of the following: (a)Savings deposit in the National City Bank of New York with a credit balance of P3,699.63. (b)1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty Company, Insular Life Assurance Company and the Manila Times. (c)1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260, 80261 and 57512 of the Manila registry of deeds.

Distileria 'La Rosario' recientemente comprada a los hermanos Valdes Legarda. "De los bienes de mi hija Filomena se deducira un lote de terreno que yo he donada a las Hijas de Jesus, en Guipit. "La casa No. 181 San Rafael, la cedo a mi hijo Mandu, solo la casa; porque ella esta construida sobre terreno de los hermanos Legarda Roces. "(Sgd.) FILOMENA ROCES LEGARDA "6 Marzo 1953" During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving children partitioned the properties consisting of the one-third share in the estate of Benito Legarda y Tuason which the children inherited in representation of their father, Benito Legarda y De la Paz. Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila in Special Proceeding No. 70878, Testate Estate of Filomena Roces Vda. de Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs. Gonzalez, CA-G.R. No. 43480-R, July 30, 1976. In the testate proceeding, Beatriz Legarda Gonzalez, a daughter of the testatrix, filed on May 20, 1968 a motion to exclude from the inventory of her mother's estate the properties which she inherited from her deceased daughter, Filomena, on the ground that said properties are reservable properties which should be inherited by Filomena Legarda's three sisters and three brothers and not by the children of Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito F. Legarda. Without awaiting the resolution on that motion, Mrs. Gonzalez filed on June 20, 1968 an ordinary civil action against her brothers, sisters, nephews and nieces and her mother's estate for the purpose of securing a declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her grandchildren to the exclusion of her three daughters and her three sons (See Paz vs. Madrigal, 100 Phil. 1085).

As already stated, the lower court dismissed the action of Mrs. Gonzalez. In this appeal under Republic Act No. 5440 she contends in her six assignments of error that the lower court erred in not regarding the properties in question as reservable properties under article 891 of the Civil Code. On the other hand, defendants-appellees in their six counter-assignments of error contend that the lower court erred in not holding that Mrs. Legarda acquired the estate of her daughter Filomena Legarda in exchange for her conjugal and hereditary shares in the estate of her husband Benito Legarda y De la Paz and in not holding that Mrs. Gonzalez waived her right to the reservable properties and that her claim is barred by estoppel, laches and prescription. The preliminary issue raised by the private respondents as to the timeliness of Mrs. Gonzalez' petition for review is a closed matter. This Court in its resolution of December 16, 1971 denied respondents' motion to dismiss and gave due course to the petition for review. In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts. Since on the basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are subject to reserva troncal, that is the only legal issue to be resolved in this appeal. The other issues raised by the defendants-appellees, particularly those involving factual matters, cannot be resolved in this appeal. As the trial court did not pass upon those issues, there is no ruling which can be reviewed by this Court.

As will hereinafter be shown that is not a novel issue or a question of first impression. It was resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability to this case of the doctrine in the Florentino case and other pertinent rulings, it may be useful to make a brief discourse on the nature of reserva troncal, also called lineal, familiar, extraordinaria o semitroncal. Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature of reserva troncal, which together with the reserva viudal and reversion legal, was abolished by the Code Commission to prevent the decedent's estate from being entailed, to eliminate the uncertainty in ownership caused by the reservation (which uncertainty impedes the improvement of the reservable property) and to discourage the confinement of property within a certain family for generations which situation allegedly leads to economic oligarchy and is incompatible with the socialization of ownership. The Code Commission regarded the reservas as remnants of feudalism which fomented agrarian unrest. Moreover, the reservas, insofar as they penalize legitimate relationship, is considered unjust and inequitable. However, the lawmaking body, not agreeing entirely with the Code Commission, restored the reserva troncal, a legal institution which, according to Manresa and Castan Tobeas, has provoked questions and doubts that are difficult to resolve. Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891, which reads: "ART. 811.El ascendiente que heredare de su descendiente bienes que ste hubiese adquirido por titulo lucrativo de otro ascendiente, o de un hermano, se halla obligado reservar los que hubiere adquirido por ministerio de la ley en favor de los parientes que esten dentro del tercer grado y pertenezcan a la linea de donde los bienes proceden." "ART. 891.The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. "

The question is whether the disputed properties are reservable properties under article 891 of the Civil Code, formerly article 811, and whether Filomena Roces Vda. de Legarda could dispose of them in her will in favor of her grandchildren to the exclusion of her six children. Did Mrs. Legarda have the right to convey mortis causa what she inherited from her daughter Filomena to the reservees within the third degree and to bypass the reservees in the second degree or should that inheritance automatically go to the reservees in the second degree, the six children of Mrs. Legarda?

In reserva troncal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant ( prepositus) and who belong to the line from which the said property came. So, three transmissions are involved: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Tobeas, Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9). If there are only two transmissions there is no reserva. Thus, where one Bonifacia Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should be inherited by his halfsister, to the exclusion of his maternal first cousins. The said lands are not reservable property within the meaning of article 811 (Lacerna vs. Vda. de Corcino, 111 Phil. 872). The persons involved in reserva troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus ( propositus) who received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law and (4) the reservee (reservatario) who is within the third degree from the prepositus and who belongs to the line (linea o tronco) from which the property came and for whom the property should be reserved by the reservor. The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392). The rationale of reserva troncal is to avoid "el peligro de que bienes poseidos secularmente por una familia pasen bruscamente a titulo gratuito a manos

extraas por el azar de los enlaces y muertes prematuras", or "impedir que, por un azar de la vida, personas extraas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella" (6 Castan Tobeas, Derecho Civil, Part 1, 6th Ed., 1960, p. 203; Padura vs. Baldovino, 104 Phil. 1065). An illustration of reserva troncal is found in Edroso vs. Sablan, 25 Phil. 295. In that case, Pedro Sablan inherited two parcels of land from his father Victoriano. Pedro died in 1902, single and without issue. His mother, Marcelina Edroso, inherited from him the two parcels of land. It was held that the land was reservable property in the hands of Marcelina. The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus. Marcelina could register the land under the Torrens system in her name but the fact that the land was reservable property in favor of her two brothers-in-law, should they survive her, should be noted in the title. In another case, it appears that Maria Aglibot died intestate in 1906. Her onehalf share of a parcel of conjugal land was inherited by her daughter, Juliana Maalac. When Juliana died intestate in 1920, said one-half share was inherited by her father, Anacleto Maalac who owned the other one-half portion. Anacleto died intestate in 1942, survived by his second wife and their six children. It was held that the said one-half portion was reservable property in the hands of Anacleto Maalac and, upon his death, should be inherited by Leona Aglibot and Evarista Aglibot, sisters of Maria and maternal aunts of Juliana Maalac, who belonged to the line from which said one-half portion came (Aglibot vs. Maalac, 114 Phil. 964). Other illustrations of reserva troncal are found in Florentino vs. Florentino, 40 Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs. Balcita, 46 Phil. 551; Lunsod vs. Ortega, 46 Phil. 664; Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno, 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G. 1784. The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revolved by descent. He is called the prepositus (Cabardo vs. Villanueva, 44 Phil. 186, 190).

In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. In his hands, the property was reservable property. Upon the death of Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest relative within the third degree. First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480). Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065). Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded. Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession (Cabardo vs. Villanueva, 44 Phil. 186-189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 1951, p. 360). The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (Sienes vs. Esparcia, 111 Phil. 349, 353). The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the death of the reservor but become indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil. 279.)

The reservor's title has been compared with that of the vendee a retro in a pacto de retro sale or to a fideicomiso condicional. The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. If there are no reservees at the time of the reservor's death, the transferee's title would become absolute (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Nono vs. Nequia, 93 Phil. 120). On the other hand, the reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecease the reservee. The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha, 48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944). There is a holding that the renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee survives the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353). "The reservatario receives the property as a conditional heir of the descendant ( prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." (J. J.B.L. Reyes in Cano vs. Director of Lands, 105 Phil. 1, 5.) "Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their reversionary right, and, for this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive" (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295).

This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista who may not dispose of them (it) by will, so long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 226, 237). "The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista." (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065). Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cano vs. Director of Lands, 105 Phil. 1, 5.) In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees or relatives within the third degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda. So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable properties by will or mortis causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of the reservees in the second degree, her three daughters and three sons. As indicated at the outset, that issue is already res judicata or cosa juzgada. We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor. As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the prepositus, not from the reservor. Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in

this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein. To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a glaring violation of article 891. That testamentary disposition cannot be allowed. We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino, 40 Phil. 480, a similar case, where it was ruled: "Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest ( prepositus), without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time the right of a reservatario" (reservee). In the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two inherited properties from their father. Upon Apolonio III's death in 1891, his properties were inherited by his mother, Severina, who died in 1908. In her will she instituted her daughter Mercedes as heiress to all her properties, including those coming from her deceased husband through their son, Apolonio III. The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the descendants of the deceased children of his first marriage, sued Mercedes Florentino for the recovery of their share in the reservable properties, which Severina de Leon had inherited from Apolonio III, which the latter had inherited from his father Apolonio II and which Severina willed to her daughter Mercedes.

Plaintiff's theory was that the said properties, as reservable properties, could not be disposed of in Severina's will in favor of Mercedes only. That theory was sustained by this Court. It was held that the said properties, being reservable properties, did not form part of Severina's estate and could not be inherited from her by her daughter Mercedes alone. As there were seven reservees, Mercedes was entitled, as a reservee, to oneseventh of the properties. The other six-sevenths portions were adjudicated to the other six reservees. Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the doctrine of the Florentino case. That doctrine means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reservee to whom the reservable property should be awarded. The alleged opinion of Sanchez Roman that there is no reserva troncal when the only relatives within the third degree are the common descendants of the predeceased ascendant and the ascendant who would be obliged to reserve is irrelevant and sans binding force in the light of the ruling in the Florentino case. It is contended by the appellees herein that the properties in question are not reservable properties because only relatives within the third degree from the paternal line have survived and that when Mrs. Legarda willed the said properties to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda who belong to the paternal line, the reason for the reserva troncal has been satisfied: "to prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein." That same contention was advanced in the Florentino case where the reservor willed the reservable properties to her daughter, a full-blood sister of the prepositus and ignored the other six reservors, the relatives of the halfblood of the prepositus.

In rejecting that contention, this Court held that the reservable property bequeathed by the reservor to her daughter does not form part of the reservor's estate nor of the daughter's estate but should be given to all the seven reservees or nearest relatives of the prepositus within the third degree. This Court noted that, while it is true that by giving the reservable property to only one reservee it did not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of the reservees and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in the reservable property (pp. 894-5). Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the properties in question even if the disposition is in favor of the relatives within the third degree from Filomena Legarda. The said properties, by operation of article 891, should go to Mrs. Legarda's six children as reservees within the second degree from Filomena Legarda.

accessions thereof, are reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito F. Legarda, who died in 1969 and 1973, respectively, should pertain to their respective heirs. Costs against the private respondents. SO ORDERED. Barredo, Guerrero, Abad Santos and De Castro, JJ., concur . Concepcion, Jr., J., is on leave. Guerrero, J., was designated to sit in the Second Division. [G.R. No. 6878. September 13, 1913.] MARCELINA EDROSO, petitioner-appellant, vs. PABLO and BASILIO SABLAN, opponents-appellees.

It should be repeated that the reservees do not inherit from the reservor but from the prepositus, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor (Padura vs. Baldovino, L11960, December 27, 1958, 104 Phil. 1065). The trial court said that the disputed properties lost their reservable character due to the non-existence of third degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to the Legarda family, "except third-degree relatives who pertain to both" the Legarda and Roces lines. That holding is erroneous. The reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate (Cano vs. Director of Lands, 105 Phil. 1, 4). WHEREFORE, the lower court's decision is reversed and set aside. It is hereby adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her daughter Filomena Legarda, with all the fruits and

Francisco Dominguez for appellant. Crispin Oben for appellees.

SYLLABUS 1.ESTATES; DUTY OF ASCENDANT, WHO INHERITS THROUGH A DESCENDANT, TO RESERVE THE PROPERTY IN ACCORDANCE WITH LAW; ARTICLE 811, CIVIL CODE. Property which an ascendant inherits by operation of law from his descendant and which was inherited by the latter from another ascendant of his, must be reserved by the ascendant heir in favor of uncles of the descendant from whom the inheritance proceeded, who are his father's brothers, because they are relatives within the third degree, if they belong to the line whence the property proceeded, according to the provisions of article 811 of the Civil Code. 2.ID.; ID.; RIGHTS OF PERSONS FOR WHOM SUCH PROPERTY IS RESERVED. Since the reservation does not imply coownership of any kind between the reservor and the reservees, that is,

between the ascendant who is the immediate heir of the person from whom the inheritance proceeded and who is the actual owner of the property to be reserved and the relatives within the third degree of such person, who are merely in their turn and eventually his possible heirs in second place, if they outlive the heir who must make the reservation, such reservees, with only the expectation of inheriting, are not in law entitled to act and be regarded as though they actually participated in the ownership of the property to be registered by taking part or pretending to take part in the application for registration which the reservor presents; the fact being that with such expectation of inheriting, which is neither a real nor a personal a personal right, but at most a legitimate expectation of a right, they cannot be better off than a mortgage who has a real right to the property that his debtor attempts to register, and yet the Land Registration Act (No 496, sec. 19 b) only grants him the right that the application of the mortgagor cannot be presented without his consent in writing. 3.ID.; ID.; RIGHT OF ASCENDANT TO DISPOSE OF OR REGISTER THE PROPERTY IN HIS OWN NAME. The heir of real property who has beyond any doubt the rights of using and enjoying it, and even of alienating it, is not prevented from himself alone registering the title to the property he has inherited, merely because to his right of disposal there is annexed a condition subsequent arising from the expectation of a right, when the reservees who have that expectation of a right agreed thereto, provided that, in accordance with the law, the reservable character of such property in their favor be entered in the record.

Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they had a son named Pedro, who was born on August 1, 1881, and who at his father's death inherited the two said parcels. Pedro also died on July 15, 1902, unmarried and without issue, and by his decease the two parcels of land passed through inheritance to his mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application for registration of her ownership. Two legitimate brothers of Victoriano Sablan that is, two uncles german of Pedro Sablan appeared in the case to oppose the registration, claiming one of two things: Either that the registration be denied, "or that if granted to her the right reserved by law to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.) The Court of Land Registration denied the registration and the applicant appealed through a bill of exceptions. Registration was denied because the trial court held that the parcels of land in question partake of the nature of property required by law to be reserved and that in such a case application could only be presented jointly in the names of the mother and the said two uncles of Pedro Sablan. The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the lands which are the subject matter of the application are required by law to be reserved a contention we regard as indefensible. Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been adjudicated to him in the partition of hereditary property had between him and his brothers. There are admitted facts. A very definite conclusion of law is that the hereditary title is one without a valuable consideration [gratuitous title], and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles german are within the third degree of blood relationship. "The ascendant who inherits from his descendant property which the latter acquired without a valuable consideration from another ascendant, or from a

brother or sister, is under obligation to reserve what he has acquired by operation of law for the relatives who are within the third degree and belong to the line whence the property proceeded." (Civil Code, art. 811.) Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which had acquired without a valuable consideration that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to reserve them intact for the claimants, who are uncles or relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature of property required by law to be reserved is therefore in accordance with the law. But the appellant contends that it is not proven that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is required by law to be reserved. The appellees justly argue that this defense was not alleged or discussed in first instance, but only herein. Certainly, the allegation in first instance was merely that "Pedro Sablan acquired the property in question in 1882, before the enforcement of the Civil Code, which establishes the alleged right required by law to be reserved, of which the opponents speak; hence, prescription of the right of action; and, finally, opponents' renunciation of their right, admitting that it existed and that they had it" (p. 49). However that be, it is not superfluous to say, although it may be unnecessary, that the applicant inherited the two parcels of land from her son Pedro, who died "unmarried and without issue." The trial court so held as a conclusion of fact, without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his mother became his heir by virtue of her right to her son's legal portion under article 935 of the Civil Code: "In the absence of legitimate children and descendants of the deceased, his ascendants shall inherit from him, to the exclusion of collaterals." The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her possession by free disposal in her son's will; but the case presents no testamentary provision that demonstrates any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was abintestate or by operation of law, and not by will or the wish of the predecessor in

DECISION

ARELLANO, C.J p: The subject matter of this appeal is the registration of certain property classified as required by law to be reserved. Marcelina Edroso applied for registration and issuance of title to two parcels of land situated in the municipality of Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other of 1 hectare 6 ares and 26 centares. Two applications were filed, one for each parcel, but both were heard and decided in a single judgment.

interest. (Act. No. 190, sec. 334, No. 26.) All the provisions of article 811 of the Civil Code have therefore been fully complied with. If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a legitimate ascendant. "The legal portion of the parents or ascendants is constituted by one-half of the hereditary estate of the children and descendants. The latter may unrestrictedly dispose of the other half, with the exception of what is established in article 836." (Civil Code, art. 809.) In such case only the half constituting the legal portion would be required by law to be reserved, because it is what by operation of law would fall to the mother from her son's inheritance; the other half at free disposal would not have to be reserved. This is all that article 811 of the Civil Code says. No error has been incurred in holding that the two parcels of land which are the subject matter of the application are required by law to be reserved, because the interested party has not proved that either of them became her inheritance through the free disposal of her son. Proof of testate succession devolves upon the heir or heiress who alleges it. It must be admitted that a half of Pedro Sablan's inheritance was acquired by his mother by operation of law. The law provides that the other half is also presumed to be acquired by operation of law that is, by intestate succession. Otherwise, proof to offset this presumption must be presented by the interested party, that is, that the other half was acquired by the man's wish and not by operation of law. Nor is the third assignment of error admissible that the trial court failed to sustain the renunciation of the right required by law to be reserved, which the applicant attributes to the opponents. Such renunciation does not appear in the case. The appellant deduces it from the fact that the appellees did not contradict the following statement of hers at the trial: "The day after my brother-in-law Pablo Sablan died and was buried, his brother came to my house and said that those rice lands were mine, because we had already talked about making delivery of them" (p. 91). The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio Sablan said that the lands belong to the

appellant and must be delivered to her it cannot be deduced that he renounced the right required by law to be reserved in such lands by virtue of the provisions of article 811 of the Civil Code, for they really belong to her and must be delivered to her. The fourth assignment of error sets up the defense of prescription of the right of action. The appellant alleges prescription of the opponents' right of action for requiring fulfillment of the obligation they attribute to her recording in the property registry the right required by law to be reserved, in accordance with the provisions of the Mortgage Law; and as such obligation is created by law, it prescribes in the time fixed in No. 2 of section 43 of Act No. 190. She adds: "Prescription of the right alleged to be reserved by force by law has not been invoked." (Eighth allegation.) The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did she do so in first instance, where she says only the following, which is quoted from the record: "I do not refer to the prescription of the right required by law to be reserved in the property; I refer to the prescription of the right of action of those who are entitled to the guaranty of that right for seeking that guaranty, for to those who are entitled to that right the Mortgage Law grants a period of time for recording it in the property registry, if I remember correctly, ninety days, for seeking entry in the registry; but as they have not exercised that right of action, such right of action for seeking here that it be recorded has prescribed. The right of action for requiring that the property be reserved has not prescribed, but the right of action for guaranteeing in the property registry that this property is required by law to be reserved" (p. 69 of the record.) The appellees reply: It is true that their right of action has prescribed for requiring the applicant to constitute the mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of the right required by law to be reserved; but because that right of action has prescribed, that property has not been divested of its character of property required by law to be reserved; that it has such character by virtue of article 811 of the Civil Code, which went into effect in the Philippines in December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the country by law of July 14, 1893; that from December, 1889, to July, 1893, property which under article 811 of the Civil Code acquired the character of property reserved by operation of law was such independently of the Mortgage Law, which did not yet form part of the positive legislation of the country; that although the Mortgage Law has been in effect in the country since July, 1893, still it has in no way altered the force of article 811 of the Civil Code, but has operated to reinforce the same merely by granting the right of action to the persons in

whose favor the right is reserved by operation of law to require of the person holding the property a guaranty in the form of a mortgage to answer for the enforcement, in due time, of the right; that to lose the right of action to the guaranty is not to lose the right itself; that the right reserved is the principal obligation and the mortgage the accessory obligation, and loss of the accessory does not mean loss of the principal. (Fifth and sixth allegations.) The existence of the right required by law to be reserved in the two parcels of land in question being indisputable, even though it be admitted that the right of action which the Mortgage Law grants as a guaranty of final enforcement of such right has prescribed, the only thing to be determined in this appeal is the question raised in the first assignment of error, that is, how said two parcels of land can and ought to be registered, not in the property registry established by the Mortgage Law, but in the registry newly organized by Act No. 496. But as there have slipped into the allegations quoted some rather inexact ideas that further obscure such an intricate subject as this of the rights required to be reserved in Spanish-Philippine law, a brief digression on the most essential points may not be out of place here. The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the colonies, not the first enforced in the colonies and consequently in the Philippines. The preamble of said amended Mortgage Law States: "The Mortgage Law in force in Spain for thirty years went into effect, with the modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in the Philippines on December 1, 1889, thus commencing in those regions the renovation of the law on real property, and consequently of agrarian credit." The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day. Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set forth in article 968 thereof, where it says: "Besides the reservation imposed by article 811 , the widow or widower contracting a second marriage shall be obliged to set apart for the children and descendants of the first marriage the ownership of all the property he or she may have acquired from the deceased spouse by will, by intestate succession, by gift, or other transfer without a valuable consideration."

The Mortgage Law of Spain and the first law that went into effect in the Philippines on December 1, 1889, do not contain any provision that can be applied to the right reserved by article 811 of the Civil Code, for such right is a creation of the Civil Code. In those laws appear merely the provisions intended to guarantee the effectiveness of the right in favor of the children of the first marriage when their father or mother contracts a second marriage. Nevertheless, the holding of the supreme court of Spain, for the first time set forth in the decision on appeal of November 8, 1894, has been reiterated: "That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the right required to be reserved in the property refer especially to the spouses who contract second or later marriages, they do not thereby cease to be applicable to the right established in article 811, because, aside from the legal reason, which is the same in both cases, such must be the construction from the important and conclusive circumstance that said provisions are set forth in the chapter that deals with inheritances in common, either testate or intestate, and because article 968, which heads the section that deals in general with property required by law to be reserved, makes reference to the provisions in article 811; and it would consequently be contradictory to the principle of the law and of the common nature of said provisions not to hold them applicable to that right." Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court has already declared, the guaranties that the Code fixes in articles 977 and 978 for the rights required by law to be reserved to which said articles refer, are applicable to the special right dealt with in article 811, because the same principle exists and because of the general nature of the provisions of the chapter in which they are found." From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a case had occurred of a right required to be reserved by article 811, the persons entitled to such right would have been able to institute, against the ascendants who must make the reservation, proceedings for the assurance and guaranty that articles 977 and 978 grant to the children of a first marriage against their father or mother who has married again. The proceedings for assurance, under article 977, are: Inventory of the property subject to the right reserved, annotation in the property registry of such right reserved in the real property and appraisal of the personal property; and the guaranty, under

article 978, is the assurance by mortgage, in the case of realty, of the value of what is validly alienated. But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines this is not only a principle of jurisprudence which may be invoked for the applicability to the right reserved in article 811 of the remedies of assurance and guaranty provided for the right reserved in article 968, but there is a positive provision of said law, which is an advantage over the law of Spain, to wit, article 199, which read thus: "The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code can only be required by the relatives in whose favor the property is to be reserved, if they are of age; if minors, it will be required by the persons who should legally represent them. In either case the right of the persons in whose favor the property must be reserved will be secured by the same requisites as set forth in the preceding articles (relative to the right reserved by article 968 of the Civil Code), applying to the person obligated to reserve the right the provisions with respect to the father." In article 168 of the same law the new subsection 2 is added in connection with article 199 quoted, so that said article 168 reads thus: "Legal mortgage is established: "1.. . . "2.In favor of the relatives to whom article 811 of the Civil Code refers, for the property required to be reserved, upon the property of the person obligated to reserve it." This being admitted, and admitted also that both the litigating parties agree that the period of ninety days fixed for the right of action to the guaranty, that is, to require the mortgage that guarantees the effectiveness of the right required by law to be reserved, has prescribed, it is necessary to lay down a principle in this matter. Now it should be noted that such action has not prescribed, because the period of ninety days fixed by the Mortgage Law is not for the exercise of the right of action of the persons entitled to the right reserved, but for the fulfillment of the obligation of the person who must make the reservation. Article 191 of the law reads thus: "If ninety days pass without the father's instituting in court the proceeding to which the foregoing article

refers, the relatives themselves may demand fulfillment, etc., . . . applying, according to said article 199, to the person obligated to reserve the right the provisions with respect to the father." Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article 199 of the law the proceedings to which article 190 thereof refers will be instituted within the ninety days succeeding the date of the date of the acceptation of the inheritance by the person obligated to reserve the property; after this period has elapsed, the interested parties may require the institution of such proceedings, if they are of age; and in any other case, their legal representatives." Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of the period for the exercise of this right of action by the persons in whose favor the right must be reserved, but really the commencement thereof, and enables them to exercise it at any time, since no limit is set in the law. So, if the annotation of the right required by law to be reserved in the two parcels of land in question must be made in the property registry of the Mortgage Law, the persons entitled to it may now institute proceedings to that end, and an allegation of prescription against the exercise of such right of action cannot be sustained. Since the applicant confesses that she does not allege prescription of the right of action for requiring that the property be reserved, for she explicitly so stated at the trial, and as the case presents no necessity for the proceedings that should be instituted in accordance with the provisions of the Mortgage Law, this prescription of the right of action cannot take place, because such right of action does not exist with reference to instituting proceedings for annotation in the registry of Act No. 496 of the right to the property required by law to be reserved. It is sufficient, as was done in the present case, to intervene in the registration proceedings with the claim set up by the two opponents for recording therein the right reserved in either parcel of land. Now comes the main point in the appeal. The trial court denied the registration because of this finding set forth in its decision: "Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two uncles of the deceased Pedro Sablan, and the application cannot be made except in the name of all of them in common." (B. of E., p. 20.) It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and recover. The person who has in himself all these rights has the absolute or complete ownership of the thing;

otherwise, the person who has the rights to use and enjoy will have the usufruct, and the person who has the rights of disposal and recovery the direct title. The person who by law, act, or contract is granted the right of usufruct has the first two rights of using and enjoying, and then he is said not to have the fee simple that is, the rights of disposal and recovery, which pertain to another who, after the usufruct expires, will come into full ownership. The question set up in the first assignment of error of the appellant's brief is this: "What are the rights in the property of the person who holds it subject to the reservation of article 811 of the Civil Code?" There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the persons in whose favor the reservation is made. If that were so, the person holding the property could not apply for registration of title, but the person in whose favor it must be reserved, with the former's consent. This opinion does not seem to be admissible, although it appears to be supported by decisions of the supreme court of Spain of May 21, 1861, and June 18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof. Another writer says: "This opinion only looks at two salient points the usufruct and the fee simple; the remaining features of the arrangement are not perceived, but become obscured in the presence of that deceptive emphasis which only brings out two things: that the person holding the property will enjoy it and that he must keep what he enjoys for other person." (Manresa, VII, 189.) In another place he says: "We do not believe that the third opinion can now be maintained that is, that the surviving spouse (the person obligated by article 968 to make the reservation) can be regarded as a mere usufructuary and the descendants immediately as the owner; such theory has no serious foundation in the Code." (Ibid., 238.) The ascendants who inherits from a descendant, whether by the latter's wish or by operation of law, acquires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right of ownership belong to him exclusively use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in the hereditary title, is not altered in the least, if there be no relatives within the third degree in the line whence the property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If there should be relatives within the third decree who belong to the line whence the property proceeded, then a limitation to that absolute

ownership would arise. The nature and scope of this limitation must be determined with exactness in order not to vitiate rights that the law wishes to be effective. The opinion which makes this limitation consist in reducing the ascendant heir to the condition of a mere usufructuary, depriving him of the right of disposal and recovery, does not seem to have any support in the law, as it does not have, according to the opinion that has been expressed in speaking of the rights of the father or mother who has married again. There is a marked difference between the case where a man's wish institutes two persons as his heirs, one as usufructuary and the other as owner of his property, and the case of the ascendant in article 811 or of the father or mother in article 968. In the first case, there is not the slightest doubt that the title to the hereditary property resides in the hereditary owner and only he can dispose of and recover it, while the usufructuary can in no way perform any act of disposal of the hereditary property (except that he may dispose of the right of usufruct in accordance with the provisions of article 480 of the Civil Code), or any act of recovery thereof except the limited one in the form prescribed in article 486 of the Code itself, because he totally lacks the fee simple. But the ascendant who holds the property required by article 811 to be reserved, and the father or mother required by article 968 to reserve the right, can dispose of the property they inherit itself, the former from his descendant and the latter from his or her child in first marriage, and recover it from anyone who may unjustly detain it, while the persons in whose favor the rights is required to be reserved in either case cannot perform any act whatsoever of disposal of recovery. Article 975 states explicitly that the father or mother required by article 968 to reserve the right may dispose of the property itself: "Alienation of the property required by law to be reserved which may be made by the surviving spouse after contracting a second marriage shall be valid only if at his or her death no legitimate children or descendants of the first marriage survive, without prejudice to the provisions of the Mortgage Law." It thus appears that the alienation is valid, although not altogether effective, but under a condition subsequent, to wit: "If at his or her death no legitimate children or descendants of the first marriage survive." If the title did not reside in the person holding the property to be reserved, his alienation thereof would necessarily be null and void, as executed without a right to do so and without a right which he could transmit to the acquirer. The law says that the alienation subsists (to subsist is to continue to exist) "without prejudice to the provisions of the Mortgage Law." Article 109 of this Law says:

"The possessor of property subject to conditions subsequent that are still pending may mortgage or alienate it, provided always that he preserve the right of the parties interested in said conditions by expressly reserving that right in the registration." In such case, the child or legitimate descendant of the first marriage in whose favor the right is reserved cannot impugn the validity of the alienation so long as the condition subsequent is pending, that is, so long as the remarried spouse who must reserve the right is alive, because it might easily happen that the person who must reserve the right should outlive all the persons in whose favor the right is reserved and then there would be no reason for the condition subsequent that they survive him, and, the object of the law having disappeared, the right required to be reserved would disappear, and the alienation would not only be valid but also in every way absolutely effective. Consequently, the alienation is valid when the right required by law to be reserved to the children is respected; while the effects of the alienation depend upon a condition, because it will or will not become definite, it will continue to exist or cease to exist, according to circumstances. This is what the law establishes with reference to the reservation of article 968, wherein the legislator expressly directs that the surviving spouse who contracts a second marriage shall reserve to the children or descendants of the first marriage ownership. Article 811 says nothing more than that the ascendant must make the reservation.

Manresa, with his recognized ability, summarizes the subject under the hearing, "Rights and obligations during the existence of the right required by law to be reserved," in these words: "During the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the relatives within the third degree, after the right that in their turn may pertain to them has been assured, have only an expectation, and therefore they do not even have the capacity to transmit that expectation to their heirs. "The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in the manner and form already set forth in commenting upon the articles of the Code referring to use and usufruct. "But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple

of the property, he can dispose of it in the manner provided in articles 974 and 976 of the same Code. Doubt arose also on this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that articles 974 and 975, which are applicable by analogy, for they refer to property reserved by law, reveal in the clearest manner the attitude of the legislator on this subject, and the relatives within the third degree ought not to be more privileged in the right reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right required to be reserved carries with it a condition subsequent, and the property subject to those conditions can validly be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending fulfillment of the condition." (Civil Code, VI, 270.) Another commentator corroborates the foregoing in every way. He says: "The ascendant acquires that property with a condition subsequent, to wit, whether or not there exist at the time of his death relatives within the third degree of the descendant from whom they inherit in the line whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendant. If they do not exist, the ascendant can freely dispose thereof. If this is true, since the possessor of property subject to conditions subsequent can alienate and encumber it, the ascendant may alienate the property required by law to be reserved, but he will alienate what he has and nothing more because no one can give does not belong to him, and the acquirer will therefore receive a limited and revocable title. The relatives within the third degree will in their turn have an expectation to the property while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also within the third degree. After the person who is required by law to reserve the right has died, the relatives may rescind the alienation of the realty required by law to be reserved and they will acquire it and all the rest that has the same character in complete ownership, in fee simple, because the condition and the usufructuary." (Morell, Estudios sobre bienes reservables, 304, 305.)

The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a condition subsequent. Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do. On the other hand, the relatives within the third degree in whose favor the right is reserved cannot dispose of the property, first because it is no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree, that is to say, a second contingent place in said legitimate succession in the fashion of aspirants to a possible future legacy. If any of the persons in whose favor the right is reserved should, after their right has been assured in the registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his act would be null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is impossible to determine the part "that might pertain therein to the relative at the time he exercised the right, because in view of the nature and scope of the right required by law to be reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the person required to reserve it, just as it may even become absolute should that person die." Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the person required by law to reserve the right can be impugned by him in whose favor it is reserved, because such person has all, absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition that the third party acquirer may ascertain from the registry in order to know that he is acquiring a title subject to a condition subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than relatives within the third degree of the descendant from whom he got the property to be reserved must be prohibited to him, because this alone has been the object of the law: "To prevent persons outside a family from securing,

by some special accident of life, property that would otherwise have remained therein." ( Decision of December 30, 1897.) Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may be absolutely made of the property the law requires to be reserved, in the present case, that which the applicant has made of the two parcels of land in question to a third party, because the conditional alienation of the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of the property required by law to be reserved are all that the person who must reserve it has during his lifetime, and in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible manner. The question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not real, actual and positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the express wish of the predecessor in interest. If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the real owner and can alienate it, although under a condition, the whole question is reduced to the following terms: Cannot the heir of the property required by law to be reserved, merely because a condition subsequent is annexed to his right of disposal, himself alone register the ownership of the property he has inherited, when the persons in whose favor the reservation must be made agree thereto, provided that the right reserved to them in the two parcels of land be recorded, as the law provides? It is well known that the vendee under pacto de retracto acquires all the rights of the vendor: "The vendee substitutes the vendor in all his rights and actions." (Civil Code, art. 1511.) If the vendor can register his title, the vendee can also register this same title after he has once acquired it. This title, however, in its attribute of being disposable, has a condition subsequent annexed that the alienation the purchaser may make will be terminated, if the vendor should exercise the right granted him by article 1507, which says: "Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold with the obligation to comply with article 1518, and whatever more may have been agreed upon," that is,

if he recovers the thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this condition subsequent, it is a point not at all doubtful now that the vendee may register his title in the same way as the owner of a thing mortgaged that is to say, the latter with the consent of his creditor and the former with the consent of the vendor. He may alienate the thing bought when the acquirer knows very well from the title entered in the registry that he acquires a title revocable after a fixed period, a thing much more certain and to be expected than the purely contingent expectation of the person in whose favor is reserved a right to inherit some day what another has inherited. The purposes of the law would be defeated in not applying to the person who must make the reservation the provision therein relative to the vendee under pacto de retracto, since the argument in his favor is the more powerful and conclusive; ubi eadem ratio, eadem legis dispositio. Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the application, recording in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her; without special finding as to costs. Torres, Mapa, Johnson, Carson and Trent, JJ., concur.

Vicente Foz, Jose Singsong Tongson and Angel Encarnacion for appellees.

the third degree, shall have died. Under these circumstances the property, transmitted by the predecessor in interest to his ascendant, has lost its character of reservation. 5.ID., ID. Reservable property left, through a will or otherwise, by the death of ascendant (reservista) to other with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable the heir receiving same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest, without prejudicing the right of the heir to an aliquot part of property, if he has at the same time the right of a reservatario.

SYLLABUS 1.RESERVABLE PROPERTY The property proceeding from an ascendant or from a brother of a deceased descendant who may have acquired same by lucrative title and from whom afterwards another ascendant of deceased will inherit is by law invested with the character of reservable property in favor of said deceased's relatives, within the third degree, of the line from whence such property proceeds. (Art. 811 of the Civil Code.) 2.ID.; WHEN IT LOSES THIS CHARACTER. The ascendant, who inherits property of a reservable character from his deceased descendant who has a relative within the third degree still living, is no more than a life usufructuary or a fiduciary of said reservable property. But if, during the lifetime of the said ascendant, all the relatives, within the third degree, of his predecessor in interest should die or disappear, according to law the condition of reservation with which the property had been burdened ceases to exist, and said property now becomes a part of the legitimate legitime of the ascendant who had inherited same through the death of those for whom it had been reserved (reservatarios). 3.ID; RIGHTS OF SUCCESSION. According to the order of succession prescribed by law for legitimes, when there are relatives within the third degree of the deceased descendant, the right of the relative's nearest reservative (reservatario) to the property excludes that of the one more remote. Wherefore the property ought to be handed over to said relative by the reservist (reservista), without it being possible to allege a right of representation when he who attempts the same is not comprehended within the third degree, among the predecessor-ininterest's relatives. Inasmuch as the right conceded by the aforementioned article 811 of the Civil Code is, in the highest degree, for the personal and exclusive benefit of the persons pointed out by law, in no manner can there be included relatives of the fourth and succeeding degrees, not recognize by law. 4.ID., NATURE OF. Reservable property neither comes nor falls under the absolute dominion of the ascendant who inherits and receives same from his deceased descendant and, therefore, neither forms part of his estate nor integrates the legitime of his forced heirs. It becomes the ascendant's own property, received as an inheritance, only under the condition that all of the deceased descendant's relatives, within

DECISION

TORRES, J p: On January 17, 1918, counsel for Encarnacion (together with her husband Simeon Serrano), Gabriel, Magdalena, Ramon, Miguel, Victorino, and Antonio of the surname Florentino; for Miguel Florentino, guardian ad litem of the minor Rosario Florentino; for Eugenio Singson, the father and guardian ad litem of Emilia, Jesus, Lourdes, Caridad, and Dolores of the surname Singson y Florentino; and for Eugenio Singson, guardian of the minors Jose and Asuncion Florentino, filed a complaint in the Court of First Instance of Ilocos Sur, against Mercedes Florentino and her husband, alleging as follows: That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that during the marriage he begot nine children called Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and Magdalena of the surname Florentino y de Leon; that on becoming a widower he married the second time Severina Faz de Leon with whom he had two children, Mercedes and Apolonio III of the surname Florentino y de Leon; that Apolonio Isabelo Florentino II died on February 13, 1890; that he was survived by his second wife Severina Faz de Leon and the ten children first above mentioned; that his eleventh son, Apolonio III, was born on the following 4th of March 1890. That of the deceased Apolonio Isabelo's aforementioned eleven children, Juan, Maria and Isabel died single, without leaving any ascendants or descendants; that Ramon, Miguel, Victorino, Antonio, and

IRST DIVISION [G.R. No. 14856. November 15, 1919.] ENCARNACION FLORENTINO ET AL., plaintiffsappellants, vs. MERCEDES FLORENTINO ET AL., defendants-appellees.

Ramon Querubin, Simeon Ramos and Orense & Vera for appellants.

Rosario are the legitimate children of the deceased Jose Florentino who was one of the children of the deceased Apolonio Isabelo; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of Espirita Florentino, now deceased, and her husband Eugenio Singson; that Jose and Asuncion are the children of Pedro Florentino, another son of the deceased Apolonio Isabelo Florentino. That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of Ilocos Sur, instituting as his universal heirs his aforementioned ten children, the posthumos Apolonio III and his widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be divided among all of his children of both marriages. That, in the partition of the said testator's estate, there as given to Apolonio Florentino III, his posthumos son the property marked with the letters A, B, C, D, E, and F in the complaint, a gold rosary, pieces of gold, of silver and of table service, livestock, palay, some personal property and other objects mentioned in the complaint. That Apolonio Florentino III, the posthumos son of the second marriage, died in 1891; that his mother, Severina Faz de Leon, succeeded to all his property described in the complaint; that the widow, Severina Faz de Leon died on November 18, 1908, leaving a will instituting as her universal heiress her only living daughter, Mercedes Florentino; that, as such heir, said daughter took possession of all the property left at the death of her mother, Severina Faz de Leon; that among same is included the property, described in the complaint, which the said Severina Faz de Leon inherited from her deceased son, the posthumos Apolonio, as reservable property; that, as a reservist, the heir of the said Mercedes Florentino deceased had been gathering for herself alone the fruits of lands described in the complaint; that each and every one of the parties mentioned in said complaint is entitled to one-seventh of the fruits of the reservable property described therein, either by direct participation or by representation, in the manner mentioned in paragraph 9 of the complaint. That several times the plaintiffs have, in an amicable manner, asked the defendants to deliver their corresponding part of the reservable property; that without any justifiable motive the defendants have refused and do refuse to deliver said property or to pay for its value; that for nine years Mercedes Florentino has been receiving, as rent for the lands mentioned, 360 bundles of palay at fifty pesos per bundle and 90 bundles of corn at four pesos per bundle; that thereby the plaintiffs have suffered damages in the sum of fifteen thousand four hundred and twenty-eight pesos and fifty-eight centavos, in addition to three hundred and eight pesos and fifty-eight centavos for the value of the fruits not gathered, of

one thousand pesos (P1,000) for the unjustifiable retention of the aforementioned reservable property and for the expenses of this suit. Wherefore they pray it be declared that all the foregoing property is reservable property; that the plaintiffs had and do have a right to the same, in the quantity and proportion mentioned in the aforementioned paragraph 9 of the complaint; that the defendants Mercedes Florentino and her husband be ordered to deliver to the plaintiffs their share of the property in question, of the palay and of the corn above mentioned, or their value; and that they be condemned to pay the plaintiffs the sum of one thousand pesos (P1,000) together with the costs of this instance. To the preceding complaint counsel for the defendants demurred, alleging that the cause of action is based on the obligation of the widow Severina Faz de Leon to reserve the property she inherited from her deceased son Apolonio Florentino y Faz de Leon v. Ho, in turn, inherited same from his father Apolonio Isabelo Florentino; that, there being no allegation to the contrary, it is to be presumed that the widow Severina Faz de Leon did not remarry after the death of this husband nor have any natural child; that the right claimed by the plaintiffs is not that mentioned in article 968 and the following articles, but that established in article 811 of the Civil Code; that the object of the provisions of the aforementioned articles is to avoid the transfer of said reservable property to those extraneous to the family of the owner thereof; that if the property inherited by the widow Severina Faz de Leon from her deceased son Apolonio Florentino y Faz de Leon (property which originated from his father and her husband) has all passed into the hands of the defendant, Mercedes Florentino y Encarnacion, a daughter of the common ancestor's second marriage (said Apolonio Isabelo Florentino with the deceased Severina Faz de Leon) it is evident that the property left at the death of the posthumos son Apolonio Florentino y Faz de Leon did not pass after the death of his mother Severina, his legitimate heirs as an ascendant, into the hands of strangers; that said property having been inherited by Mercedes Florentino y Encarnacion from her mother (Severina), article 811 of the Civil Code is absolutely inapplicable to the present case because, when the defendant Mercedes, by operation of law, entered into and succeeded to, the possession, of the property lawfully inherited from her mother Severina Faz de Leon, said property had, while in the possession of her mother, lost the character of reservable property there being a legitimate daughter of Severina Faz de Leon with the right to succeed her in all her rights, property and actions; that the restraints of the law whereby said property may not passed into the possession of strangers are void, inasmuch as the said widow had no obligation to reserve same, as Mercedes Florentino is a forced heiress of her mother Severina Faz de Leon; that, in the present case, there ii no property reserved for the plaintiffs since there is a forced

heiress, entitled to the property left by the death of the widow Severina Faz de Leon who never remarried; that the obligation to reserve is secondary to the duty of respecting the legitime; that in the instant case, the widow Severina Faz de Leon was in duty bound to respect the legitime of her daughter Mercedes, the defendant; that her obligation to reserve the property could not be fulfilled to the prejudice of the legitime which belongs to her forced heiress, citing in support of these statements the decision of the supreme court of Spain of January 4, 1911; that, finally, the application of article 811 of the Civil Code in favor of the plaintiffs would presuppose the exclusion of the defendant from her right to succeed exclusively to all the property, rights and actions left by her legitimate mother, altho the said defendant has a better right than the plaintiffs; and that there would be injustice if the property claimed be adjudicated to the plaintiffs, as well as a violation of section 5 of the Jones Law which invalidates any law depriving any person of an equal protection. Wherefore they prayed that the demurrer be sustained, with costs against the plaintiffs.

After the hearing of the demurrer, on August 22, 1918, the judge absolved the defendants from the complaint and condemned the plaintiffs to pay the costs. Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant them a new trial; said motion was overruled; the plaintiffs excepted thereto and filed the corresponding bill of exceptions which was allowed, certified and forwarded to the clerk of this court. On appeal the trial judge sustained the demurrer of the defendants to the complaint of the plaintiffs, but, instead of ordering the latter to amend their complaint within the period prescribed by the rules undoubtedly believing that the plaintiffs could not alter nor change the facts constituting the cause of action, and that, as both parties were agreed as to the facts alleged in the complaint as well as in the demurrer, every question reduced itself to one of the law, already submitted to the decision of the court the said judge, disregarding the ordinary procedure established by law, decided the case by absolving the defendants from the complaint and by condemning the plaintiffs to pay the costs of the instance. There certainly was no real trial, inasmuch as the defendants, instead of answering the complaint of the plaintiffs, confined themselves to filing a demurrer based on the ground that the facts alleged in the complaint do not constitute a cause of action. However, the judge preferred to absolve the defendants, thereby making an end to the cause, instead of dismissing the same, because undoubtedly he believed, in

view of the controversy between the parties, that the arguments adduced to support the demurrer would be the same which the defendants would allege in their answer those dealing with a mere question of law which the courts would have to decide and that, the demurrer having been sustained, if the plaintiffs should insist they could do no less upon alleging the same facts as those set out in their complaint and if another demurrer were afterwards set up, he would be obliged to dismiss said complaint with costs against the plaintiffs in spite of being undoubtedly convinced in the instant case that the plaintiffs absolutely lack the right to bring the action stated in their complaint. Being of the opinion that the emendation of the indicated defects is not necessary as in this case what has been done does not prejudice the parties the appellate court will now proceed to decide the suit according to its merits, as found in the record and to the legal provisions applicable to the question of law in controversy so that unnecessary delay and greater expense may be avoided, inasmuch as, even if all the ordinary proceedings be followed, the suit would be subsequently decided in the manner and terms that it is now decided in the opinion thoughtfully and conscientiously formed for its determination. In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions of article 811 of the Civil Code, and whether the same article is applicable to the question of law presented in this suit, it is necessary to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of reservable property; and, if so, whether in accordance with the provision of the Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who inherited said property from her son Apolonio Florentino III (born after the death of his father Apolonio Isabelo) had the obligation to preserve and reserve same for the relatives, within the third degree, of her aforementioned deceased son Apolonio III. The above mentioned article reads: "Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came." During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two children were born, namely the defendant Mercedes Florentino and Apolonio Florentino III (born after the death of his father). At the death of Apolonio Isabelo Florentino under a will, his

eleven children succeeded to the inheritance he left, one of whom, the posthumos son Apolonio III, was given, as his share, the aforementioned property enumerated in the complaint. In 1891 the said posthumos son Apolonio Florentino III died and was succeeded by his legitimate mother Severina Faz de Leon, who inherited the property he left and who on dying, November 18, 1908, instituted by will as her sole heiress her surviving daughter, Mercedes Florentino, the defendant herein, who took possession of all property left by her father, same constituting the inheritance. Included in said inheritance is the property, specified in paragraph 5 of the complaint, which had been inherited by the posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino, and which, at the death of the said posthumos son, had in turn been inherited by his mother, Severina Faz de Leon. Even if Severina left in her will said property, together with her own, to her only daughter and forced heiress, Mercedes Florentino, nevertheless this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his legitimate mother and ascendant, Severina Faz de Leon. The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II. Although said property was inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line from which such property came. According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the obligation to reserve and preserve same for certain designated persons who, on the death of the said ascendantsreservists, (taking into consideration the nature of the line from which such property came) acquire the ownership of said property in fact and by operation of law in the same manner as forced heirs (because they are also so such) said property reverts to said line as long as the aforementioned persons who, from the death of the ascendant reservists, acquire in fact the right of reservatarios (persons for whom property is reserved), and are relatives, within the third degree, of the descendant from whom the reservable property came. Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He is, however, the legitimate owner of his own property which

is not reservable property and which constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards, all of the relatives, within the third degree, of the descendant (from whom came the reservable property) die or disappear, the said property becomes free property, by operation of law, and is thereby converted into the legitime of the ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the relatives, called reservatarios, who belonged within the third degree to the line from which such property came. Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such. In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in accordance with article 811 of the Civil Code. In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and Magdalena are the legitimate children of the first marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel, Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo Florentino II, and children of his deceased son, Jose Florentino; that the same have the right to represent their aforementioned father, Jose Florentino; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased Espirita Florentino, one of the daughters of the deceased Apolonio Isabelo Florentino II, and represent the right of their aforementioned mother; and that the other plaintiffs, Jose

and Asuncion, have also the right to represent their legitimate father Pedro Florentino, one of the sons of the aforementioned Apolonio Isabelo Florentino II. It is a fact, admitted by both parties, that the other children of the first marriage of the deceased Apolonio Isabelo Florentino II died without issue so that this decision does not deal with them.

There are then seven "reservatarios" who are entitled to the reservable property left at the death of Apolonio III; the posthumos son of the aforementioned Apolonio Isabelo II, to wit, his three children of his first marriage Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own twelve children respectively; and Mercedes Florentino, his daughter by a second marriage. All of the plaintiffs are the relatives of the deceased posthumos son, Apolonio Florentino III, within the third degree (four of whom being his half-brothers and the remaining twelve being his nephews as they are the children of his three half-brothers). As the first four are his relatives within the third degree in their own right and the other twelve are such by representation, all of them are indisputably entitled as reservatarios to the property which came from the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his life-time, and in turn by inheritance to his legitimate mother, Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II. In spite of the provision of article 811 of the Civil Code already cited, the trial judge refused to accept the theory of the plaintiffs and, accepting that of the defendants, absolved the latter from the complaint on the ground that said article is absolutely inapplicable to the instant case, inasmuch as the defendant Mercedes Florentino survived her brother, Apolonio III, from whom the reservable property came and her mother, Severina Faz de Leon, the widow of her father, Apolonio Isabelo Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de Leon, is likewise her forced heiress; that when she inherited the property left at the death of her mother, together with that which came from her deceased brother Apolonio III, the fundamental object of article 811 of the Code was thereby complied with, inasmuch as the danger that the property coming from the same line might fall into the hands of strangers had been avoided; and that the hope or expectation on the part of the plaintiffs of the right to acquire the property of the deceased Apolonio III never did come into existence because there is a forced heiress who is entitled to such property. The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the system of legitimate succession and that the pretension of the plaintiffs to apply said article in the instant case would be permitting the reservable right to reduce and

impair the forced legitime which exclusively belongs to the defendant Mercedes Florentino, in violation of the precept of article 813 of the same Code which provides that the testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he impose upon it any burden, condition, or substitution of any kind whatsoever, saving the provisions concerning the usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4, 1911. The principal question submitted to the court for decision consists mainly in determining whether the property left at the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not invested with the character of reservable property when it was received by his mother, Severina Faz de Leon. The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt whatsoever from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue, the same passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property, in accordance with the provision of article 811 of the Code, with the object that the same should not fall into the possession of persons other than those comprehended within the order of succession traced by the law from Apolonio Isabelo II, the source of said property. If this property was in fact clothed with the character and condition of reservable property when Severina Faz de Leon inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only the right of usufruct or of fiduciary, with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes Florentino. Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista), in which case said reservable property losses such character. With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her will concerning the reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the other reservatarios, the half brothers and nephews of her daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her own and she has only the

right of usufruct or of fiduciary, with the obligation to preserve and to deliver same to the reservatarios, one of whom is her own daughter, Mercedes Florentino. It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the reservable property, received during lifetime by Severina Faz de Leon from her son, Apolonio III, constitutes or forms part of the legitime pertaining to Mercedes Florentino. If said property did not come to be the legitimate and exclusive property of Severina Faz de Leon, her only legitimate and forced heiress, the defendant Mercedes, could not inherit all by operation of law and in accordance with the order of legitimate succession, because the other relatives of the deceased Apolonio III, within the third degree, as well as herself are entitled to such reservable property. For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the inheritance of her mother Severina Faz de Leon, has been reduced and impaired; and the application of article 811 of the Code to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled to a part only of the reservable property, there being no lawfull or just reason which serves as real foundation to disregard the right to Apolonio III's other relatives, within the third degree, to participate in the reservable property in question. As these relatives are at present living, claiming for it with an indisputable right, we cannot find any reasonable and lawful motive why their rights should not be upheld and why they should not be granted equal participation with the defendant in the litigated property. The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes, the property received from the deceased son Apolonio III lost the character, previously held, of reservable property; and that the mother, the said Severina, therefore, had no further obligation to reserve same for the relatives within the third degree of the deceased Apolonio III, is evidently erroneous for the reason that as has been already stated, the reservable property, left in a will by the aforementioned Severina to her only daughter Mercedes, does not form part of the inheritance left by her death nor of the legitimate of the heiress Mercedes. Just because she has a forced heiress, with a right to her inheritance, does not relieve Severina of her obligation to reserve the property which she received from her deceased son, nor did same lose the character of reservable property held before the reservatarios received same. It is true that when Mercedes Florentino, the heiress of the reservista Severina, took possession of the property in question, same did not pass into the hands of strangers. But it is likewise true that the

said Mercedes is not the only reservataria. And there is no reason founded upon law and upon the principle of justice why the other reservatarios, the other brothers and nephews, relatives within the third degree in accordance with the precept of article 811 of the Civil Code, should be deprived of portions of the property which, as reservable property, pertain to them. From the foregoing it has been shown that the doctrine announced by the Supreme Court of Spain on January 4, 1911, for the violation of articles 811, 968 and consequently of the Civil Code is not applicable in the instant case. Following the provisions of article 813, the Supreme Court of Spain held that the legitime of the forced heirs cannot be reduced or impaired and said article is expressly respected in this decision. However, in spite of the efforts of the appellee to defend their supposed rights, it has not been shown, upon any legal foundation, that the reservable property belonged to, and was under the absolute dominion of, the reservista, there being relatives within the third degree of the person from whom same came; that said property, upon passing into the hands of the forced heiress of the deceased reservista, formed part of the legitime of the former; and that the said forced heiress, in addition to being a reservataria, had an exclusive right to receive all of said property and to deprive the other reservatarios, her relatives within the third degree, of certain portions thereof. Concerning the prayer in the complaint relative to the indemnity for damages and the delivery of the fruits collected, it is not proper to grant the first for there is no evidence of any damage which can give rise to the obligation of refunding same. As to the second, the delivery of the fruits produced by the land forming the principal part of the reservable property, the defendants are undoubtedly in duty bound to deliver to the plaintiffs six-sevenths of the fruits or rents of the portions of land claimed in the complaint, in the quantity expressed in paragraph 11 of the same, from January 17, 1918, the date the complaint was filed; and the remaining seventh part should go to the defendant Mercedes.

the plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from said portion of the land and of the quantity claimed, from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in the complaint is denied, without special findings as to the costs of both instances. So ordered. Arellano, C. J., Johnson, Araullo, Street, Malcolm and Avancea, JJ., concur.

This is an appeal from a judgment of the Court of First Instance of the Province of Tayabas, absolving the defendants from all liability under the plaintiff's complaint, without any finding as to costs. Juliana Nieva, the alleged natural mother of the plaintiff Segunda Maria Nieva, married Francisco. Deocampo. Of said marriage Alfeo Deocampo was born. Juliana Nieva died intestate on April 19, 1889, and her said son, Alfeo Deocampo, inherited from her, ab intestate, the parcels of land described in Paragraphs V and X of the complaint. Alfeo Deocampo died intestate and without issue on July 7, 1890. Thereupon the two parcels of land above-mentioned passed to his father, Francisco Deocampo, by intestate succession. Thereafter Francisco Deocampo married the herein defendant Manuela Alcala, of which marriage was born Jose Deocampo, the other defendant herein. Francisco Deocampo died on August la, 1914, whereupon his widow and son, the defendants herein, took possession of the parcels of land in question, under the claim that the said son, the defendant Jose Deocampo (a minor) had inherited the same, ab intestate, from his deceased father. On September 30, 1915, the plaintiff herein, claiming to be an acknowledged natural daughter of the said Juliana Nieva, instituted the present action for the purpose of recovering from the defendants the parcels of land in question, particularly described in Paragraphs V and X of the complaint, invoking the provisions of article 811 of the Civil Code. The lower court held that, even granting, without deciding, that the plaintiff was an acknowledged natural daughter of Juliana Nieva, she was not entitled to the property here in question because, in its opinion an illegitimate relative has no right to the reserva troncal under the provisions of article 811 of the Civil Code. The first question presented by this appeal is, whether or not the plaintiff is an acknowledged natural daughter of the deceased Juliana Nieva. It appears from the record that the said Juliana; Nieva, while unmarried, gave birth to the plaintiff on March 29, 1882, and that the plaintiff was duly baptized as her natural daughter, of unknown father (Exhibit C, baptismal certificate); that the said Juliana Nieva nourished and reared her said child, the plaintiff herein; that the plaintiff lived with her said mother until the latter was married to Francisco Deocampo; that the said mother treated the plaintiff, and exhibited her publicly, as a legitimate daughter. (See testimony of Antero Gala, pp. .5-6; Prudencio de la Cuesta, pp. 16-17; and Mamerto Paiabrica, pp. 26-27, sten. notes.)

[G.R. No. 13386. October 27, 1920.] SEGUNDA MARIA NIEVA with her husband ANGEL ALCALA, plaintiffs-appellants, vs. MANUELA ALCALA and JOSE DEOCAMPO, defendants-appellees.

Eduardo Gutierrez Repide for appellants. Felipe Agoncillo for appellees.

SYLLABUS 1.RESERVABLE RIGHTS IN PROPERTY; INHERITANCE BY RELATIVES WITHIN THE THIRD DEGREE- ILLEGITIMATE RELATIVES. Article 811 of the Civil Code which provides that "any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property, as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came," does not apply to illegitimate relatives.

For the foregoing reasons it follows that with the reversal of the order of decision appealed from we should declare, as we hereby do, that the aforementioned property, inherited by the deceased Severina Faz de Leon from her son Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III within the third degree, are entitled to six-sevenths of said reservable property; that the defendant Mercedes is entitled to the remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to

DECISION

JOHNSON, J p:

The foregoing facts, which are not controverted, are analogous to the facts in the case of Llorente vs. Rodriguez (3 Phil., 697, 699). Under the decision of this court in that case we are of the opinion and so decide, without rediscussing here the law and legal principles involved, that the plaintiff Segunda Maria Nieva is an acknowledged natural daughter of Juliana Nieva. (See also In re estate of Enriquez and Reyes, 29 Phil., 167.) The other and more important question presented by this appeal is, whether or not an illegitimate relative within the third degree is entitled to the reserva troncal provided for by article 811 of the Civil Code. That article reads as follows: "Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came." The property here in question was inherited, by operation of law, by Francisco Deocampo from his son Alfeo Deocampo, who, in turn, had inherited it, in the same manner, from his mother Juliana Nieva, the natural mother of the plaintiff. The plaintiff is the natural sister of Alfeo Deocampo, and she belongs to the same line from which the property in question came. Was Francisco Deocampo obliged by law to reserve said property for the benefit of the plaintiff, an illegitimate relative within the third degree of Alfeo Deocampo? If he was, then, upon his death, the plaintiff, and not his son the defendant Jose Deocampo, was entitled to the said property; if he was not, the plaintiff's action must fail. There can be no question whatever but that, under said article 811 of the Civil Code, the plaintiff would be entitled to the property in question if she were a legitimate daughter of Juliana Nieva. (Edroso vs. Sablan, 25 Phil., 295.) But in said article 811 the legislator uses the generic terms "ascendant," "descendant," and "relatives," without specifying whether or not they have to be legitimate. Does the legislator, then, refer to legitimate as well as to illegitimate relatives ? Counsel for the appellant, in a lengthy and carefully prepared brief, attempts to maintain the affirmative. This question, so far as our investigation shows, has not been decided before by any court or tribunal. However, eminent commentators on the Spanish Civil Code, who have devoted their lives to the study and solution of the intricate and difficult problems that may arise under the provisions of that Code, have dealt with the very question now before us,

and are unanimous in the opinion that the provisions of article 811 of the Civil Code apply only to legitimate relatives. One of such commentators, undoubtedly the best known of them all, is Manresa. We believe we can do no better than to adopt his reasons and conclusions, in deciding the question before us. In determining the persons who are obliged to reserve under article 811, he says: "Is every ascendant, whether legitimate or not, obliged to reserve? Should the natural father or grandfather reserve the properties proceeding from the mother or other natural ascendant? Article 811 does not distinguish; it speaks of the ascendant, without attaching the qualification of legitimate, and, on the other hand, the same reason that exists for applying the provision to the natural family exists for applying it to the legitimate family. Nevertheless, the article in referring to the ascendant in an indeterminate manner shows that it imposes the obligation to reserve only upon the legitimate ascendant. "Let us overlook for the moment the question whether the Code recognizes or does not recognize the existence of the natural family, or whether it admits only the bond established by acknowledgment between the father or mother who acknowledges and the acknowledged children. However it may be, it may be stated as an indisputable truth, that in said Code, the legitimate relationship forms the general rule and the natural relationship the exception; which is the reason why, as may be easily seen, the law in many articles speaks only of children or parents, of ascendants or descendants, and in them reference is of course made to those who are legitimate; and when it desires to make a provision-applicable only to natural relationship, it does not say father or mother, but natural father or natural mother; it does not say child, but natural child; it does not speak of ascendants, brothers or parents in the abstract, but of natural ascendants, natural brothers or natural parents. (See, for example, articles 294, 302, 809, 810, 846, 935 to 938, 944 and 945 and 946 to 955.) "Articles 809 and 810 themselves speak only of ascendants. Can it in any way be maintained that they refer to legitimate as well as to natural ascendants? They evidently establish the legitime of the legitimate ascendants included as forced heirs in number 2 of article 807. And article 811, and as we will see also article

812, continues to treat of this same legitime. The right of the natural parents and children in the testamentary succession is wholly included in the eighth section and is limited to the parents, other ascendants of such class being excluded in articles 807, No. 3, and 846. Therefore, the place which article 811 occupies in the Code is proof that it refers only to legitimate ascendants. And if there were any doubt, it disappears upon considering the text of article 938, which states that the provisions of article 811 applies to intestate succession, which is just established in favor of the legitimate direct ascending line, the text of articles 939 to 945, which treat of intestate succession of natural parents, as well as that of articles 840 to 847, treating of their testamentary succession, which do not allude directly or indirectly to that provision. "Lastly, the principle which underlies the exception which article 811 creates in the right to succeed neither admits of any other interpretation. Whether the provision is due to the desire that the properties should not pass, by reason of new marriages, out of the family to which they belonged, or is directly derived from the system of the so-called 'reserva troncal,' and whether the idea of reservation or that of lineal rights (troncalidad) predominate the patrimony which is intended to be preserved is that of the legitimate family. Only to legitimate ascendants and descendants do article 968 et seg. of the Code refer, arising as they do from the danger of second or subsequent marriage; only to legitimate parents do the special laws of Navarra, Aragon, Vizcaya and Cataluna concede the right to succeed with respect to lineal properties (bienes troncales); only to the legitimate ascendants does article 811 impose the duty to reserve.

"The convenience of amplifying the precept to natural parents and ascendants may be raised just as the question whether it would be preferable to suppress it altogether may be raised; but in the realm of the statute law there is no remedy but to admit that article 811, the interpretation of which should on the other hand be strict was drafted by the legislator with respect only to legitimate ascendants." (Manresa, Codigo Civil, vol. 6, 3d ed., pp. 249-250.)

The same jurist, in determining the persons in whose favor the reservation is established, says: "Persons in whose favor the reservation is established. This is one of the most delicate points in the interpretation of article 811. According to this article, the reservation is established in favor of the parents who are within the third degree and belong to the line from which the properties came. "It treats of blood relationship, which is applicable to questions on succession, according to articles 915 to 920. It could not be otherwise, because relationship by affinity is established between each spouse and the family of the other, by marriage, and to admit it, would be to favor the transmission of the properties of the family of one spouse to that of the other, which is just what this article intends to prevent. "It also treats of legitimate relationship. The person obliged to reserve is a legitimate ascendant who inherits from a descendant property which proceeds from the same legitimate family, and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and only in favor of that line is the reservation established. Furthermore, we have already said, the object is to protect the patrimony of the legitimate family, following the precedents of the foral law. And it could not be otherwise. Article 943 denies to legitimate parents the right to succeed the natural child and viceversa, from which it must be deduced that natural parents neither have the right to inherit from legitimate ones; the law in the article cited establishes a barrier between the two families; properties of the legitimate family shall never pass by operation of law to the natural family." (Ibid. pp. 251-252.) Scaevola, after a very extended discussion of this same subject, arrives at the same conclusion as Manresa. "La reserva del articulo 811 es privilegio de la familia legitima. (The reservation in article 811 i6 a privilege of the legitimate family.)" (See Scaevola, Codigo Civil, Vol. 14, pp. 211-224, 3010-305.) Article 943, above referred to by Manresa, provides as follows: "A natural or legitimated child has no right to succeed ab intestate the legitimate children and relatives

of the father or mother who has acknowledged it; nor shall such children or relatives so inherit from the natural or legitimated child." To hold that the appellant is entitled to the property left by her natural brother, Alfeo Deocampo, by operation of law, would be a flagrant violation of the express provisions of the foregoing article (943). For all of the foregoing reasons, the judgment of the lower court is hereby affirmed, without any finding as to costs. So ordered. Mapa, C.J., Araullo, Malcolm, Avancea and Villamor, JJ., concur.

such as the registration of an attachment, levy upon execution, notice of lis pendens, and the like. In case of involuntary registration, an entry thereof in the day book is a sufficient notice to all persons even if the owner's duplicate certificate of title is not presented to the register of deeds. "On the other hand, according to the said cases of Levin v. Bass, in case of voluntary registration of documents an innocent purchaser for value of registered land becomes the registered owner, and, in contemplation of law the holder of a certificate of title, the moment he presents and files a duly notarized and valid deed of sale and the same is entered in the day book and at the same time he surrenders or presents the owner's duplicate certificate of title covering the land sold and pays the registration fees, because what remains to be done lies not within his power to perform. The register of deeds is duty bound to perform it." (See Potenciano v. Dineros, 97 Phil. 196). 2.ID.; SUCCESSION; RESERVA TRONCAL; OBLIGATION OF THE RESERVOR. The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo as provided in Article 891 of the New Civil Code on reserva troncal. Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the property, in reserva troncal, the reservor (the ascendant who inherited from a descendant property which the latter inherited from another ascendant) has the duty to reserve and therefore, the duty to annotate also. 3.ID.; ID.; ID.; RESERVABLE CHARACTER OF THE REAL PROPERTY MUST BE ANNOTATED IN THE REGISTRY OF PROPERTY. The jurisprudential rule requiring annotation in the Registry of Property of the right reserved in real property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in the New Civil Code. This rule is consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529, which provides that; "The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned . . . ." 4.ID.; ID.; ID.; ACTION FOR RECOVERY OF RESERVED PROPERTY; PRESCRIPTIVE PERIOD. The cause of action of the reservees did not commence upon the death of the propositus Raul Balantakbo on June 13, 1952 but upon the death of the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor the right (or property) is reserved have no title of ownership or of fee simple over the reserved property during the lifetime of the reservor. Only when the reservor should die before the reservees will the latter acquire the reserved property, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives with in the third

[G.R. Nos. 68843-44. September 2, 1991.] MARIQUITA O. SUMAYA and LAGUNA AGROINDUSTRIAL COCONUT COOPERATIVE, INC., petitioners, vs. THE HON. INTERMEDIATE APPELLATE COURT, and AMADEO, SANCHO, DONATO, LUIS, ERASTO, LUISA, JOSE and DOLORES, all surnamed BALANTAKBO, respondents.

Ceriaco A. Sumaya for petitioners. Tomas P. Aonuevo for private respondents.

SYLLABUS 1.CIVIL LAW; LAND REGISTRATION; VOLUNTARY AND INVOLUNTARY REGISTRATION; EFFECT OF ENTRY IN THE DAY BOOK WITHOUT NOTING ON THE CERTIFICATE OF TITLE. In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid down that the mere entry of a document in the day book without noting it on the certificate of title is not sufficient registration. However, that ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420. As explained in Garcia v. C.A., et al., G.R. Nos. L-48971 and 49011, January 20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine in this jurisdiction. "That ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420, where a distinction was made between voluntary and involuntary registration,

degree (See Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58 Phil. 89). The reserva is extinguished upon the death of the reservor, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for recovery may prescribe in ten (10) years under the old Code of Civil Procedure (see Carillo v. De Paz, G.R. No. L-22601, October 28, 1966, 18 SCRA 467, 473) or in thirty years under Article 1141 of the New Civil Code.

"I.Que de mi legitimo matrimonio con mi difunto esposo, Jose Balantakbo, he tenido varios hijos, entre ellos si difunto hijo, llamado Raul Balantakbo. "II.Que mi referido hijo Raul Balantakbo, fallencio el 13 de Junio de 1952, en la Ciudad de Pasay, durante su minoria de edad sin dejar testamento alguno." "III.Que el finado Raul Balantakbo al morir no ha dejado descendiente alguno.

Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo sold the properties described in the complaint in Civil Case No. SC-957 to Villa Honorio Development Corporation, Inc. The latter in turn transferred and assigned all its rights to the properties in favor of Laguna Agro-Industrial Coconut Cooperative, Inc. which properties are presently in its possession. The parties admit that the certificates of titles covering the above described properties do not contain any annotation of its reservable character. On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died. On March 4, 1970, Amadeo, Sancho, Donato, Luis, and Erasto, all surnamed Balantakbo, brothers in full blood of Raul Balantakbo and Luisa, Jose and Dolores, also all surnamed Balantakbo, surviving children of deceased Jose Balantakbo, Jr., another brother of the first named Balantakbos, filed the above mentioned civil cases to recover the properties described in the respective complaints which they claimed were subject to a reserva troncal in their favor. The court a quo found that the two (2) cases varied only in the identity of the subject matter of res involved, the transferees, the dates of the conveyances but involve the same legal question of reserva troncal. Hence, the consolidation of the two (2) cases. After trial, the court a quo rendered a joint decision in favor of the Balantakbos, the dispositive portion of which reads: "WHEREFORE, in both Civil Cases Nos. SC-956 and SC957, judgment is hereby rendered in favor of the plaintiffs and against the defendants, as follows: "1.Ordering the defendant Laguna Agro-Industrial Coconut Cooperative, Inc. to convey to the plaintiffs "a.)In Civil Case No. SC-956 the one-third (1/3) interest and ownership, proindiviso, in and over the parcel of land described in paragraph three (3) subparagraph 1, of pages one (1) and two (2) of this decision; "b.)In Civil Case No. SC-957 the one-seventh (1/7) interest and ownership, pro-

DECISION "IV.Que soy la unica ascendiente superviviento de mi referido hijo Raul Balantakbo y por lo tanto su unica heredera formosa, legitima y universal. MEDIALDEA, J p: This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now Court of Appeals) in C.A. G.R. No. CV-01292-93, which affirmed the decision of the Court of First Instance (now Regional Trial Court) of Laguna in the consolidated cases in Civil Case No. SC-956 1 and Civil Case No. SC-957. 2 The parties entered into a stipulation of facts in the court a quo, which is summarized as follows: cdrep Raul Balantakbo inherited from two (2) different ascendants the two (2) sets of properties subject of this case: 1) A one-third (1/3) interest, pro-indiviso in a parcel of land situated in Dita, Lilio (Liliw) Laguna and described in paragraph 7 of the complaint in Civil Case No. SC-956 from his father Jose, Sr., who died on January 28, 1945; and 2) A one-seventh (1/7) interest pro-indiviso in ten (10) parcels of registered lands described in paragraph 6 of the complaint in Civil Case No. SC-957 from his maternal grandmother, Luisa Bautista, who died on November 3, 1950. On June 13, 1952, Raul died intestate, single, without any issue, and leaving only his mother, Consuelo Joaquin Vda. de Balantakbo, as his sole surviving heir to the real properties above-mentioned. On November 3, 1952, Consuelo adjudicated unto herself the above described properties in an Affidavit entitled "Caudal Herederario del finado Raul Balantakbo" which provided, among others: "V.Que el finado Raul Balantakbo murio sin dejar deuda alguna. "VI.Que el finado al morir dejo propiedades consistentes en bienes inmuebles situados en la Provincia de Laguna. "VII.Que dichas propriedades fueron a su vez adquiridas por el finado Raul Balantakbo per herencia de su difunto padre, Jose Balantakbo, y de su tia abuela Luisa Bautista. ". . ." (Rollo, p. 29). On December 21, 1959, Consuelo Joaquin vda de. Balantakbo sold the property described in Civil Case No. SC-956 to Mariquita H. Sumaya. The sale was evidenced by a deed attached as Annex "C" to the complaint. The same property was subsequently sold by Mariquita Sumaya to Villa Honorio Development Corporation, Inc., on December 30, 1963. On January 23, 1967, Villa Honorio Development Corporation transferred and assigned its rights over the property in favor of Agro-Industrial Coconut Cooperative, Inc. The documents evidencing these transfers were registered in the Registry of Deeds of Laguna and the corresponding certificates of titles were issued. The properties are presently in the name of Agro-Industrial Coconut Cooperative, Inc., 2/3 share and the remaining 1/3 share is in the name of Sancho Balantakbo. LLjur

indiviso, in and over the ten (10) parcels of land described in paragraph three (3), subparagraph 2, of pages two (2) and three (3) of this decision; "c.)The plaintiffs are to share equally in the real properties herein ordered to be conveyed to them by the defendants with plaintiffs Luisa, Jose and Dolores, all surnamed Balantakbo, receiving one-third (1/3) of the one share pertaining to the other plaintiffs who are their uncles:

This petition before Us was filed on November 12, 1984 with the petitioners assigning the following errors allegedly committed by the appellate court: I.The trial court erred in not finding defendants an (sic) innocent purchaser for value and in good faith of the properties covered by certificates of title subject of litigation. II.The trial court erred in finding it unnecessary to annotate the reservable interest of the reservee in the properties covered by certificates of title subject of litigation. III.The trial court erred in finding that the cause of action of the plaintiffs (private respondents) has not yet prescribed.

by Consuelo stating the source of the properties thereby showing the reservable nature thereof was registered with the Register of Deeds of Laguna, and this is sufficient notice to the whole world in accordance with Section 52 of the Property Registration Decree (formerly Sec. 51 of R.A. 496) which provides: llcd "SEC. 52.CONSTRUCTIVE NOTICE UPON REGISTRATION . Every conveyance, mortgage, lease, lien attachment, order, judgment, instrument or entry affecting registered land shall, if registered, filed or entered in the Office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering, filing or entering." Thus, in Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969, 27 SCRA 706, 712-713, cited in People v. Reyes, G.R. Nos. 74226-27, July 27, 1989, 175 SCRA 597; Garcia v. CA and PNB v. CA, et al., G.R. Nos. L-48971 and L40911, both dated January 22, 1980, 95 SCRA 380 and Legarda and Prieto v. Saleeby, 31 Phil. 590, 600, We held: "When a conveyance has been properly recorded such record is constructive notice of its contents and all interests, legal and equitable, included therein . . . "Under the rule of notice, it is presumed that the purchaser has examined every instrument of record affecting the title. Such presumption is irrebuttable. He is charged with notice of every fact shown by the record and is presumed to know every fact shown by the record and is presumed to know every fact which an examination of the record would have disclosed. This presumption cannot be overcome by proof of innocence or good faith. Otherwise, the very purpose and object of the law requiring a record would be destroyed. Such presumption cannot be defeated by proof of want of knowledge of what the record contains any more than one may be permitted to show that he was ignorant of the provisions of the law. The rule that all persons must take notice of the facts which the public record contains is a rule of law. The rule must be absolute, any variation would lead to endless confusion and useless litigation. . . ."

"2.Ordering the Laguna Agro-Industrial Coconut Cooperative, Inc. to account for and pay to the plaintiffs the value of the produce from the properties herein ordered to be returned to the plaintiffs, said accounting and payment of income being for the period from January 3, 1968 until date of reconveyance of the properties herein ordered: "3.In each of Civil Cases Nos. SC-956 and SC-957, defendants are to pay plaintiffs "a.One Thousand (P1,000.00) Pesos in litigation expenses "b.Two Thousand (P2,000.00) Pesos in attorney's fees. "4.Defendants are to pay the costs in each of Civil Cases Nos. SC-956 and 957. ". . ." (p. 46, Rollo). This decision was appealed to the appellate court which affirmed the decision of the court a quo in toto. The motion for reconsideration was denied (p. 65, Rollo) by the appellate court which found no cogent reason to reverse the decision.

IV.The trial court erred in awarding moral and actual damages in favor of the plaintiffs by virtue of the institution of Civil Cases Nos. 956 and 957. Petitioners would want this Court to reverse the findings of the court a quo, which the appellate court affirmed, that they were not innocent purchasers for value. According to petitioners, before they agreed to buy the properties from the reservor (also called reservista), Consuelo Joaquin vda. de Balantakbo, they first sought the legal advice of their family consultant who found that there was no encumbrance nor any lien annotated on the certificate of title covering the properties. The court a quo found otherwise. Upon the death of the propositus, Raul Balantakbo, the reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of self-adjudication of the estate of Raul, wherein it was clearly stated that the properties were inherited by Raul from his father Jose, Sr., as regards the subject matter of Civil Case No. SC-956 and from his maternal grandmother, Luisa Bautista, as regards the subject matter of Civil Case No. SC-957. The court a quo further ruled that said affidavit was, in its form, declaration and substance, a recording with the Registry of Deeds of the reservable character of the properties. In Spanish language, the affidavit clearly stated that the affiant, Consuelo, was a lone ascendant and heir to Raul Balantakbo, her son, who died leaving properties previously inherited from other ascendants and which properties were inventoried in the said affidavit. It was admitted that the certificates of titles covering the properties in question show that they were free from any liens and encumbrances at the time of the sale. The fact remains however, that the affidavit of self-adjudication executed

In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid down that the mere entry of a document in the day book without noting it on the certificate of title is not sufficient registration. However, that ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420. As explained in Garcia v. C.A., et al., G.R. Nos. L-48971 and 49011, January 20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine in this jurisdiction. "That ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420, where a distinction was made between voluntary and involuntary registration, such as the registration of an attachment, levy upon execution, notice of lis pendens, and the like. In cases of involuntary registration, an entry thereof in the day book is a sufficient notice to all persons even if the owner's duplicate certificate of title is not presented to the register of deeds. "On the other hand, according to the said cases of Levin v. Bass, in case of voluntary registration of documents an innocent purchaser for value of registered land becomes the registered owner, and, in contemplation of law the holder of a certificate of title, the moment he presents and files a duly notarized and valid deed of sale and the same is entered in the day book and at the same time he surrenders or presents the owner's duplicate certificate of title covering the land sold and pays the registration fees, because what remains to be done lies not within his power to perform. The register of deeds is duty bound to perform it." (See Potenciano v. Dineros, 97 Phil. 196). In this case, the affidavit of self-adjudication executed by Consuelo vda. de Balantakbo which contained a statement that the property was inherited from a descendant, Raul, which has likewise inherited by the latter from another ascendant, was registered with the Registry of Property. The failure of the Register of Deeds to annotate the reservable character of the property in the certificate of title cannot be attributed to Consuelo. Moreover, there is sufficient proof that the petitioners had actual knowledge of the reservable character of the properties before they bought the same from Consuelo. This matter appeared in the deed of sale (Exhibit "C") executed by Consuelo in favor of Mariquita Sumaya, the first vendee of the property litigated in Civil Case No. SC-956, as follows:

"xxx xxx xxx" "That, I (Consuelo, vendor) an the absolute and exclusive owner of the one-third (1/3) portion of the above described parcel of land by virtue of the Deed of ExtraJudicial Partition executed by the Heirs of the deceased Jose Balantakbo dated December 10, 1945 and said portion in accordance with the partition above-mentioned was adjudicated to Raul Balantakbo, single, to (sic) whom I inherited after his death and this property is entirely free from any encumbrance of any nature or kind whatsoever, . . . ." (p 42, Rollo) It was admitted though that as regards the properties litigated in Civil Case SC-957, no such admission was made by Consuelo to put Villa Honorio Development on notice of the reservable character of the properties. The affidavit of self-adjudication executed by Consuelo and registered with the Registry would still be sufficient notice to bind them. prcd Moreover, the court a quo found that the petitioners and private respondents were long time acquaintances; that the Villa Honorio Development Corporation and its successors, the Laguna Agro-Industrial Coconut Cooperative Inc., are family corporations of the Sumayas and that the petitioners knew all along that the properties litigated in this case were inherited by Raul Balantakbo from his father and from his maternal grandmother, and that Consuelo Vda. de Balantakbo inherited these properties from his son Raul. The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo. Article 891 of the New Civil Code on reserva troncal provides: "Art. 891.The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came." (emphasis supplied). We do not agree, however, with the disposition of the appellate court that there is no need to register the reservable character of the property, if only for the protection of the reservees, against innocent third persons. This was suggested as early as the case of Director of Lands v. Aguas, G.R. No.

42737, August 11, 1936, 63 Phil. 279. The main issue submitted for resolution therein was whether the reservation established by Article 811 (now Art. 891 of the New Civil Code) of the Civil Code, for the benefit of the relatives within the third degree belonging to the line of the descendant from whom the ascendant reservor received the property, should be understood as made in favor of all the relatives within said degree and belonging to the line abovementioned, without distinction legitimate, natural and illegitimate ones not having the legal status of natural children. However, in an obiter dictum this Court stated therein:

"The reservable character of a property is but a resolutory condition of the ascendant reservor's right of ownership. If the condition is fulfilled, that is, if upon the ascendant reservor's death there are relatives having the status provided in Article 811 (Art. 891, New Civil Code), the property passes, in accordance with this special order of succession, to said relatives, or to the nearest of kin among them, which question not being pertinent to this case, need not now be determined. But if this condition is not fulfilled, the property is released and will be adjudicated in accordance with the regular order of succession. The fulfillment or non-fulfillment of the resolutory condition, the efficacy or cessation of the reservation, the acquisition of rights or loss of the vested ones, are phenomena which have nothing to do with whether the reservation has been noted or not in the certificate of title to the property. The purpose of the notation is nothing more than to afford to the persons entitled to the reservation, if any, due protection against any act of the reservor, which may make it ineffective . . . ." (p. 292, ibid). Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January 14, 1926, 48 Phil. 601, 603, this Court ruled that the reservable character of a property may be lost to innocent purchasers for value. Additionally, it was ruled therein that the obligation imposed on a widowed spouse to annotate the reservable character of a property subject of reserva viudal is applicable to reserva troncal. (See also Edrozo v. Sablan, G.R. No. 6878, September 13, 1913, 25 Phil. 295).

"Since these parcels of land have been legally transferred to third persons, Vicente Galang has lost ownership thereof and cannot now register nor record in the Registry of Deeds their reservable character; neither can he effect the fee simple, which does not belong to him, to the damage of Juan Medina and Teodoro Jurado, who acquired the said land in good faith, free of all incumbrances. An attempt was made to prove that when Juan Medina was advised not to buy the land he remarked, `Why, did he (Vicente Galang) not inherit it from his son?' Aside from the fact that it is not clear whether this conservation took place in 1913 or 1914, that is, before or after the sale, it does not signify that he had any knowledge of the reservation. This did not arise from the fact alone that Vicente Galang had inherited the land from his son, but also from the fact that, by operation of law, the son had inherited it from his mother Rufina Dizon, which circumstance, so far as the record shows, Juan Medina had not been aware of. We do not decide, however, whether or not Juan Medina and Teodoro Jurado are obliged to acknowledge the reservation and to note the same in their deeds, for the reason that there was no prayer to this effect in the complaint and no question raised in regard thereto." Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the property, in reserva troncal, the reservor (the ascendant who inherited from a descendant property which the latter inherited from another descendant) has the duty to reserve and therefore, the duty to annotate also. prLL The jurisprudential rule requiring annotation in the Registry of Property of the right reserved in real property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in the New Civil Code. This rule is consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529, which provides that: "The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned . . . ." (emphasis supplied). The properties involved in this case are already covered by a Torrens title and unless the registration of the limitation is effected (either actual or constructive), no third persons shall be prejudiced thereby.

The respondent appellate court did not err in finding that the cause of action of the private respondents did not prescribe yet. The cause of action of the reservees did not commence upon the death of the propositus Raul Balantakbo on June 13, 1952 but upon the death of the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor the right (or property) is reserved have no title of ownership or of fee simple over the reserved property during the lifetime of the reservor. Only when the reservor should die before the reservees will the latter acquire the reserved property, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree (See Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58 Phil. 89). The reserva is extinguished upon the death of the reservor, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for recovery may prescribe in ten (10) years under the old Code of Civil Procedure (see Carillo v. De Paz, G.R. No. L-22601, October 28, 1966, 18 SCRA 467, 473) or in thirty years under Article 1141 of the New Civil Code. The actions for recovery of the reserved property was brought by herein private respondents on March 4, 1970 or less than two (2) years from the death of the reservor. Therefore, private respondents' cause of action has not prescribed yet. Finally, the award of one thousand pesos (P1,000.00) for actual litigation expenses and two thousand pesos (P2,000.00) for attorney's fees is proper under Article 2208(2) of the New Civil Code. Private respondents were compelled to go to court to recover what rightfully belongs to them. cdphil ACCORDINGLY, the petition is DENIED. The questioned decision of the Intermediate Appellate Court is AFFIRMED, except for the modification on the necessity to annotate the reversible character of a property subject of reserva troncal. SO ORDERED. Narvasa, Cruz and Grio-Aquino, JJ., concur.

PRIMA G. CARRILLO and LORENZO LICUP, plaintiffsappellants, vs. FRANCISCA SALAK DE PAZ and ERNESTO BAUTISTA, defendants-appellees.

Filemon Cajator for plaintiffs and appellants. Tomas Besa for defendants and appellees.

SYLLABUS 1.PLEADING AND PRACTICE; APPELLATE COURT MAY UPHOLD JUDGMENT OF COURT BELOW ON SOME POINT IGNORED. When the trial judge decides a case in favor of a party an a certain ground, the appellate court may uphold the decision below upon some other point which was ignored or erroneously decided in favor of the appellant by the trial court (Garcia Valdez vs. Soterana Tuason, 40 Phil., 943; Relativo vs. Castro, 76 Phil., 563). 2.CIVIL LAW; RESERVA TRONCAL. Reserva troncal in this jurisdiction is treated in Article 891 of the new Civil Code and Article 811 of the old Civil Code. 3.ID.; ID.; WHEN EXTINGUISHED; LOSS OF RIGHT BY PRESCRIPTION. The reserva is extinguished upon the death of the reservista, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for recovering real properties, can be lost by prescription (Manresa, Comentarios Al Codigo Civil Espaol, Vol. 6, 1911 Ed., pp. 288289, 316-318). 4.ID.; ID.; PRESCRIPTION MAY APPLY AGAINST THE RESERVATARIOS. Prescription can apply against the reservatarios to cut off their right to the reservable property (Scaevola, Codigo Civil Comentado, Vol. 14, 1944 Ed., p. 360). 5.ID.; PRESCRIPTION OF ACTIONS TO RECOVER REAL PROPERTY. Section 40 of the Code of Civil Procedure fixes 10 years as the period of prescription for actions to recover real property, counted from the time the cause of action accrued. This is the applicable law because Article 1116 of the new Civil Code provides that "prescription already running before the

[G.R. No. L-22601. October 28, 1966.]

effectivity of this Code (August 30, 1950) shall be governed by laws previously in force." The suit herein, having been filed only on April 22, 1963, or more than 10 years from April 24, 1950, has prescribed.

DECISION

BENGZON, J.P., J p: This is an appeal from an order of the Court of First Instance of Tarlac dismissing a suit to recover ownership and possession of 2/3 of 1/2 of Lot No. 221 of the Cadastral Survey of Tarlac. Severino Salak and Petra Garcia were the owners of Lot No. 221 of the Cadastral Survey of Tarlac, covered by Original Certificate of Title No. 41543, with an area of 1,334 square meters. Petra Garcia died on September 21, 1941. On August 16, 1943, Severino Salak sold to Honoria Salak for P812.00 his 1/2 portion of said lot. A year later, on December 5, 1944, Severino Salak died. Sometime in January 1945, Honoria Salak and other members of her family died massacred by the Japanese. As a result, two settlement proceedings were instituted in the Court of First Instance of Tarlac: (1) Special Proceeding No. 3, to settle the estates of Severino Salak and Petra Garcia and (2) Special Proceeding No. 23, to settle the estates of the Salak family (parents Simeon Salak and Isabel Carrillo; and children Adolfo, Honoria, Consuelo and Ligaya). On September 4, 1946, a Project of Partition was submitted in Special Proceeding No. 3, which the court approved on November 19, 1946. Said project adjudicated inter alia Lot No. 221, which was given thereunder to Francisca Salak de Paz (1/4, of it in her capacity as heir, and the other 3/4 by purchase and/or exchange with her co-heirs, Rita Sahagun, Aurea Sahagun and Ernesto Bautista). From 1946 up to the present Francisca Salak has possessed all of Lot No. 221. On the other hand, in Special Proceeding No. 23, on February 26, 1948, the court a quo held that the heirs entitled to the estates of the Salak family were

Agustina de Guzman Vda. de Carrillo (3/4 share) and Ernesto Bautista (1/4, share), applying the survivorship presumption [Rule 123, Sec. 69(ii), now Rule 131, Sec. 5(jj) of the Rules of Court], thus: (1) Simeon Salak died first his properties went to the children Adolfo, Honoria, Consuelo and Ligaya (1/4, each); (2) Honoria, Consuelo and Ligaya died next Honoria's and Consuelo's properties went to their mother, Isabel; those of Ligaya went to her son, Ernesto Bautista; 1 (3) Isabel died next her properties went to her son Adolfo; and (4) Adolfo died last his properties went to his maternal grandmother, Agustina. Agustina thereby succeeded to the properties that came by intestate succession from Honoria Salak and Isabel Carrillo, including 1/2 of Lot No. 221. On November 9, 1948, Agustina de Guzman Vda. de Carrillo filed an action in the Court of First Instance of Tarlac (docketed therein as Case No. 351) against the heirs in Special Proceeding No. 3 to recover 1/2 of Lot No. 221 which as aforementioned has been possessed by Francisca Salak de Paz. On April 24, 1950, Agustina died. On June 8, 1950 the Court of Appeals affirmed the decision of the Court of First Instance of Tarlac in Special Proceeding No. 23, and further decreed that the properties inherited by Agustina de Guzman Vda. de Carrillo were subject to reserva troncal. On November 6, 1950, Ernesto Bautista filed petition in Special Proceeding No. 23 for the execution of the judgment therein. Said petition was heard on November 10, 1959, after a copy was served on the lawyer of Prima Carrillo, the latter being a party thereto as administratrix of the estate of her deceased mother Agustina. Acting on said petition, the lower court issued its order of November 14, 1950, which reads in part: ". . . the Court, in view of the death of the reservista, Doa Agustina de Guzman Vda. de Carrillo, declares all the interest of the said reservista Doa Agustina de Guzman Vda. de Carrillo as well as that of her heirs in the threefourths share adjudged to the reservista definitely terminated, and that the reservee, the minor Ernesto Bautista, is entitled to the immediate delivery to him of the said three-fourths share declared reserved to him in the decision of the Court of Appeals of June 8, 1950 . . ." (Record on Appeal, pp. 213- 214)

On December 20, 1960, the lower court dismissed Civil Case No. 351. The order of dismissal reads in part: "By virtue of the existence of third-degree relatives of Adolfo Salak, the portion of Lot No. 221, inherited by Agustina de Guzman was never released from the reserva, so as to convert the ownership of Agustina de Guzman into an absolute one. Upon her death on April 24, 1950, therefore, the property did not pass by inheritance to her legal heirs, but rather reverted to the family trunk of the Isabel-Adolfo line. Such being the case, the estate of Agustina de Guzman, the present plaintiff in this case, has no cause of action against the defendants. "In resume the adjudication in Special Proceeding No. 23, Intestate Estate of the late Simeon Salak and Isabel Camillo, which included Lot No. 221, has become res judicata which cannot be disturbed in this case." (Record on Appeal p. 209) On April 22, 1963, Prima Carrillo and Lorenzo Licup filed the present suit for recovery of 2/3 of 1/2 Lot No. 221 against Francisca Salak de Paz and Ernesto Bautista. 2 On June 20, 1963, defendants Francisca Salak de Paz and Ernesto Bautista filed a motion to dismiss upon the grounds that the cause of action is barred by prior judgment and by the statute of limitations. On November 19, 1963, the court a quo dismissed the complaint on the ground of res judicata, finding the suit barred by the order of delivery dated November 14, 1950 in Special Proceeding No. 23. Plaintiffs Prima Carrillo and Lorenzo Licup thereupon appealed to Us upon questions of law. Several grounds were advanced to support the motion to dismiss: that the cause of action is barred by prior judgment and by the statute of limitations. Although the action was dismissed by the lower court expressly upon the ground of res judicata, it did not totally disregard the defense of prescription. Thus, said court pointed out that:

"Prima Carillo being then the administratrix of the estate of her mother, she is also deemed to have been notified of the petition for execution of judgment in Special Proceeding No. 23, and of the order of November 14, 1950. As of then, therefore, Prima Carillo (even though as administratrix) personally knew that Ernesto Bautista claimed to be the sole reservee of all the properties inherited by Da. Agustina from the Salak Family, among which was Lot No. 221 in question, but she did not file any opposition thereto. It was her opportunity to assert her right as reservee by opposing the petition or, failing in this, to contest or to ask to be relieved from the order of November 14, 1950. Instead, she allowed about thirteen (13) years before she commenced the present action." (Decision, Record on Appeal, pp. 214-215; emphasis supplied) At any rate, this Court can resolve this appeal on the issue of prescription. As ruled in the cases of Garcia Valdez vs. Soterana Tuazon, 40 Phil. 943, and Relativo vs. Castro, 76 Phil. 563, when the trial judge decides a case in favor of a party on a certain ground, the appellate court may uphold the decision below upon some other point which was ignored or erroneously decided in favor of the appellant by the trial court. Reserva troncal in this jurisdiction is treated in Article 891 of the new Civil Code and Article 811 of the old Civil Code, which state: "The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquitted by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came." The reserva troncal arose as had been finally decided by the Court of Appeals in Special Proceeding No. 23 when Agustina acquired by operation of law all the properties of her descendant Adolfo (grandson), who acquired them by gratuitous title from another ascendant, Isabel (Adolfo's mother).

According to Manresa, the reserva is extinguished upon the death of the reservista, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right, if not exercised within the time for recovering real properties, can be lost by prescription: "Pero extinguida la reserva por la muerte del reservista, cambian nor completo las relaciones y condiciones juridicas de las personas y de las cosas, como ya se ha indicado. La obligacion de reservar se convierte en la de entregar los bienes a quien correspondan, obligacion que pasa a la herencia del reservista fallecido y deben complir sus herederos. Y el derecho a la reserva se convierte en el derecho al dominio pleno de esos bienes. Si a la muerte del reservista se comple la condicion resolutoria de existir parientes dentro del tercer grado que pertenezcan a la linea de donde los bienes proceden, a estos parientes pasa desde aquel momento por ministerio de la ley el dominio absoluto de aquellos bienes, y, por consiguiente, el derecho para reclamarlos, pudiendo disponer libremente de aquellos o de este, y transmitirlos a sus herederos, puesto que la ley no lo prohibe. Y si no sobrevive al reservista ninguno de dichos parientes, queda extinguida la obligacion de reservar, por no haberse complido aquella condicion resolutoria impuesta por la ley, y en su virtud vuelven los bienes al pleno domiuo del ascendiente, y pertenecen a su herencia conforme al art. 651. Y como nada ordena la ley en sentido contrario, tenemos por indudable que no tienb el caracter de personalismo ninguno de esos derechos, que nacen con la extincion de la reserva, pertenecen a la herencia y se transmiten a los herederos, aunque el causante no los hubiere ejercitado por si mismo, salva los casos de renuncia, incapacidad o prescripcion." xxx xxx xxx "C)Extincion de la reserva. Las mismas condiciones exigas para el nacimiento de la raserva son necesarias para su exitsencia. Al faltar una de ellas, la reserva muere. Tres son, por tanto las principales causas da extincion:

"1.aMuerte del ascendiente. Sea el que quiera el destino definitivo de los bienes, en virtud de la naturaleza condicional de los derechos que crea el art. 811, es lo cierto que la reserva, como tal, una vez nacida, acompaa al ascendiente obligado a ella hasta su muerte. Muerto el ascendiente, casa toda obligacion da reservar; falta el sujecto pasivo ds la reserva. xxx xxx xxx "Ademas de las tres causas expresadas, pueden sealarse otras que expondremos a continuacion. xxx xxx xxx "Y 5.a La prescripcion, si se disfrutan como libres los bienes por los herederos del ascendiente durante el tiempo y con las condiciones marcadas por la ley." (Manresa, Comentarios Al Codigo Civil Espaol, Vol. 6, 1911 Ed., pp. 288-289, 316-318). Scaevola also states the view that prescription can apply against the reservatarios to cut off their right to the reservable property: "f)Prescription. Este modo extintivo de los derechos tiene solo aplicacion a los parientes del tercer grado del descendiente porque no habiendo reserva si no acepta el ascendiente, no hay que hablar de prescripcion extintiva respecto de el. "Trocante a los parientes con derecho a la reserva, es aplicable la doctrina, porque pueden no ejercer su derecho por ignorar la muertb del descendiente o por otra causa. "Dada esta posibilidad, entendemos que, tratandose de un derecho real sobre bienes inmuebles, prescribira a los treinta aos (art. 1693) (1), contados desde la aceptacion de la herencia por el ascendiente, momento determinante del derecho al ejercicio de la reserva (art. 1.969); transcurridos, pues, treinta aos desde la aceptacion sin que los parientes favorecidos por la ley hayan solicitado

la constitucion da la reserva, se extinguira esta, y el ascendiente o sus derecho-habientes adquiriran el plano diminio de los bienes reservebles por su naturaleza, pero que no fueron objeto de reserva." (Scaevola, Codigo Civil Comentado, Vol. 14, 1944 Ed., p. 360). Plaintiffs-appellants herein, as reservatarios, had the right to claim the property 2/3 of 1/2 of Lot No. 221 from Francisca Salak de Paz, who has been possessing it in the concept of an owner, from April 24, 1950 when Agustina died. And the Court of Appeals' decision affirming the existence of reserva troncal, promulgated on June 8, 1950, rendered it all the more doubtless that such right had accrued in their favor from the time Agustina died. It is clear, therefore, that the right or cause of action accrued in favor of the plaintiffs-reservatarios herein on April 24, 1950. Section 40 of the Code of Civil Procedure fixes 10 years as the period of prescription for actions to recover real property, counted from the time the cause of action accrued. This is the applicable law because Article 1116 of the new Civil Code provides that "prescription already running before the effectivity of this Code [August 30, 1950] shall be governed by laws previously in force." Plaintiffs-appellants' suit herein, having been filed only on April 22, 1963, or more than 10 years from April 24, 1950, has prescribed. And having reached such conclusion, We deem it unnecessary to pass upon the question of whether the suit is also barred on the ground of res judicata. WHEREFORE, the order of dismissal appealed from is hereby affirmed on the ground of prescription, with costs against appellants. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur. Barrera, J., is on leave. [G.R. No. 70722. July 3, 1991.] CANUTA PAGKATIPUNAN, FLORA VELASQUEZ, BENJAMIN VELASQUEZ, RODOLFO VELASQUEZ, ALFREDO VELASQUEZ, NAPOLEON VELASQUEZ,

MANUEL VELASQUEZ, JULIO VELASQUEZ, VICTORIA VELASQUEZ, CARLOS VELASQUEZ, LEONOR VELASQUEZ, ELENA VELASQUEZ, PATROCINIO VELASQUEZ, PATRICLA VELASQUEZ, SANTIAGO ZAPANTA, HERMINIGILDO SISON, ALFREDO AGAPITO, MOISES SANTOS, MAGDALENA PAGKATIPUNAN, AGAPITO MANALO, MIGUEL ANGELES, MATIAS ALVAREZ, PATRICIO LAYSA, TEOFILO DE LUNA, ISIDRO ANINAO, APOLINAR CASAL, MOISES GALLARDO, BONIFACIO PEREZ, DELFIN LAYBA, AND HERMOGENES FLORES, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT, JOSE R. VELASQUEZ, JR., LOURDES VELASQUEZ, EDGARDO VELASQUEZ, LOLITA VELASQUEZ, MINERVA VELASQUEZ, CYNTHIA VELASQUEZ, CESAR GONZALES, ADOLFO GONZALES, EVELYN GONZALES, AMELITA GONZALES, RUBEN GONZALES, AND CARMENCITA GONZALES, respondents.

2.ID.; LAND REGISTRATION; LAND FRAUDULENTLY REGISTERED, HELD AS MERE TRUSTEE BY THE PERSON IN WHOSE NAME THE SAME IS REGISTERED. The fact that they had succeeded in securing title over the said parcels of land does not warrant the reversal of the trial court's ruling that the sales and assignments were sham and fictitious. A Torrens title does not furnish a shield for fraud notwithstanding the long-standing rule that registration is a constructive notice of title binding upon the whole world. The legal principle is that if the registration of the land is fraudulent and the person in whose name the land is registered thus holds it as a mere trustee, the real owner is entitled to file an action for reconveyance of the property within a period of ten years (Pajarillo v. Intermediate Appellate Court, G.R. No. 72908, August 11, 1969, 176 SCRA 340). Since petitioners asserted claims of exclusive ownership over the said parcels of land but acted in fraud of the private respondents, the former may be held to act as trustees for the benefit of the latter, pursuant to the provision of Article 1456 of the Civil Code: 3.ID.; ID.; ID.; RECONVEYANCE IN FAVOR OF ONE OF THE PARTIES TO THE CASE; NOT POSSIBLE UNTIL WHO AMONG THE HEIRS ARE DETERMINED ENTITLED THERETO. But while the trial court has the authority to order the reconveyance of the questioned titles, We cannot agree that the reconveyance should be made in favor of the private respondents. The reason is that it is still unproven whether or not the private respondents are the only ones entitled to the conjugal properties of Jose Velasquez, Sr. and Victorina Real. It is to be noted that as the lawful heirs of Jose Velasquez, Sr. the herein petitioners are also entitled to participate with his conjugal share. To reconvey said property in favor of the private respondents alone would not only be improper but will also make the situation more complicated. There are still things to be done before the legal share of all the heirs can be properly adjudicated. 4.ID.; SUCCESSION; STEPS NECESSARY TO DETERMINE LEGAL SHARE DUE THE COMPULSORY HEIRS. No conclusion as to the legal share due to the compulsory heirs can be reached in this case without (1) determining first the net value of the estate of Jose Velasquez, Sr.; (2) collating all the donations inter vivos in favor of some of the heirs; and (3) ascertaining the legitime of the compulsory heirs.

Bengzon, Zarraga, Narciso, Cudala, Pecson, Ascuna & Bengson for petitioners. Tomas P. Aonuevo for private respondents.

SYLLABUS 1.CIVIL LAW; SUCCESSION; LIQUIDATION OF CONJUGAL PARTNERSHIPS; FAILURE TO COLLATE AND CONSIDER DONATIONS MADE DURING THE LIFETIME OF DONOR; DISTRIBUTION AMONG THE HEIRS CONSIDERED DEFECTIVE. It is a basic rule that before any conclusion about the legal share due to the heirs may be reached, it is necessary that certain steps be taken first. The trial court failed to consider among others, Articles 908 and 1061 of the Civil Code . It is undeniable that numerous donations inter vivos were made by Jose Velasquez, Sr. in favor of some of his compulsory heirs. Likewise, no collation of the donations he executed during his lifetime was undertaken by the trial court. With the avowed specific provisions of the laws respecting collation, which are ruled controlling even in intestate succession, this Court finds that the lower court's ruling adjudicating the remaining portion of the conjugal estate to the private respondents is purely speculative and conjectural.

DECISION

MEDIALDEA, J p:

This petition for certiorari seeks to nullify the decision of the Intermediate Appellate Court (now Court of Appeals) in AC-G.R. CV No. 68431 dated February 7, 1986, affirming the decision of the Court of First Instance (now Regional Trial Court) of Laguna, Branch II, Santa Cruz, Laguna, in Civil Case No. SC-894, the dispositive portion of which reads: "WHEREFORE, the appealed decision of the lower court is affirmed, with the following modification: "The entire house and lot on West Avenue, Quezon City, shall be divided as follows: "One-half value of said house and lot to defendantappellant Canuta Pagkatipunan and her 13 codefendants-appellants children (now petitioners) to the extent of their respective proportional contributions as stated above; and. "The other one-half value of the said house and lot goes to the second conjugal partnership of the deceased husband and his second spouse Canuta Pagkatipunan to be partitioned one-fourth to Canuta Pagkatipunan and the other one-fourth appertaining to the deceased Jose Velasquez, Sr. to be divided equally among his 18 heirs as follows: 1/18 undivided portion to Canuta Pagkatipunan; 1/18 undivided portion to the plaintiffappellee Lourdes Velasquez; 1/18 undivided portion to the plaintiffsappellees Edgardo, Lolita, Minerva, Cynthia, and Jennifer, all surnamed Velasquez; 1/18 undivided portion to the plaintiffsappellee Teresa Magtibay and her children, Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez; 1/18 undivided portion to the plaintiffsappellees Cesar, Adolfo, Evelyn, Angelita, Ruben, and Carmencita, all surnamed Gonzales;

1/18 undivided portion to each of the 13 defendants-appellants Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia, Victoria, and Carlos, all surnamed Velasquez. "SO ORDERED." (p. 55, Rollo) The facts from the records are as follows: The principal litigants in this case are the successors-in-interest of Jose Velasquez, Sr. who died intestate on February 24, 1961. Petitioner Canuta Pagkatipunan is the surviving spouse of Jose Velasquez, Sr. and the other 13 petitioners are their children namely: Flora, Leonor, Patrocinio, Julio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Elena, Patricia, Victoria and Carlos. On the other hand, the private respondents are the descendants of Jose Velasquez, Sr. with his first wife Victorina Real who died in 1920 at Santa Cruz, Laguna. Private respondents Jose Velasquez, Jr. (substituted after his death during the pendency of this suit by his surviving spouse Teresa Magtibay and their children Ricardo, Lourdes, Celia and Aida), and Lourdes Velasquez are two of the five children of Jose Velasquez, Sr. and Victorina Real. The other three, Amelia, Guillermo and Lutgarda, all surnamed Velasquez, all died before the commencement of this case. Amelia Velasquez died without any issue. Guillermo Velasquez was survived by private respondents Edgardo, Lolita, Minerva, Cynthia and Jennifer, all surnamed Velasquez, his children, forced heirs and lawful successors-in-interest. Lutgarda Velasquez was survived by private respondents Cesar, Adolfo, Evelyn, Amelita, Ruben and Carmencita, all surnamed Gonzales, likewise her children, forced heirs and successors-in-interest. This case was judicially instituted by the private respondents against the petitioners in 1969 in a complaint entitled "accion reivindicatoria, annulment of deeds of sale, partition and damages." However, both the trial and the appellate courts considered that the real controversy in this case is the liquidation of the conjugal partnership properties acquired by the deceased Jose Velasquez, Sr. in his two marriages, one with Victorina Real, who predeceased him, and the other with Canuta Pagkatipunan, as well as the partition of the estate of said Jose Velasquez, Sr. among his heirs. It appears that after the death of Victorina Real in 1920, no dissolution of the first conjugal property has been made. Consequently, Jose Velasquez, Sr. enjoyed full possession, use, usufruct and administration of the whole conjugal property of the first marriage. llcd

In 1930, Jose Velasquez, Sr. took Canuta Pagkatipunan as his second wife although they cohabited as early as 1921, when she was 16, soon after his first wife's death. From this marriage, the other 13 co-petitioners were born. Neither had there been any liquidation of the second conjugal partnership after the death of Jose Velasquez, Sr. in 1961. This situation gave rise to the controversies in the instant case spawned by the parties' conflicting claims from both sides of the two marriages. The trial court appointed two sets of commissioners one on January 31, 1975, for the purpose of making an inventory of the estate of Jose Velasquez, Sr., and the other on November 15, 1976, to determine which of the parcels of land listed in such inventory submitted by the first set of commissioners belong to the conjugal partnership of the first marriage or to the conjugal partnership of the second marriage. Based on the Report and Inventory submitted on May 29, 1975, the commissioners listed the following properties as acquired by the late Jose Velasquez, Sr. during his marriage with Victorina Real: 1.Tax Declaration No. 2718. A riceland, located in Luya and with an area of 93,662 square meters; 2.Tax Declaration No. 3125. A Secano land located in Luya and with an area of 12,540 square meters; 3.Tax Declaration No. 2623. A Cocal and Forestal, situated in Salang-Bato (Macasipac) and with an area of 500,000 square meters;

4.Tax Declaration No. 2096. A riceland, situated in Islang Munti and with an area of 40,328 square meters; 5.A Cocal and Forestal land situated in Bankang Bato containing an area of 240,000 square meters; 6.Tax Declaration No. 4251. A Cocal, Secano and Cogonal land situated in Cambuja and containing an area of 163,121 square meters;

7.Tax Declaration No. 1342. A parcel of land situated in Bagumbayan and containing an area of 80,258 square meters; 8.Tax Declaration No. 3541. A Cocal and Secano land, situated in Bagumbayan and containing an area of 20 hectares;(Total area as surveyed is 392,503 square meters. This includes the area of the land stated in Item 7 of the Inventory). 9.Tax Declaration No. 82. A Cogonal land situated in Tungkod (Ikalong Tuwid), containing an area of 385,324 square meters; 10.Tax Declaration No. 1500. A riceland, situated in Pague, containing an area of 9,228 square meters; 11.Tax Declaration No. 5688. a)A parcel of land situated in NAPSE (Masinao), containing an area of 24,725 square meters; b)A parcel of land situated in NAPSE (Masinao), containing an area of 25,000 square meters; 12.Tax Declaration No. 543. A parcel of land situated in Gomez Street, containing an area of 755 square meters; 13.Tax Declaration No. 4139. A parcel of land situated in Caboam containing an area of 367.2 square meters; 14.Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area of 367.2 square meters. 15.Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area of 367.2 square meters. 16.Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area of 367.2 square meters.

17.Tax Declaration No. 4139. A parcel of land situated in Caboam, containing an area of 1,275 square meters. 18.Tax Declaration No. 804-A. Three parcels of land situated in Salang Bato, containing an area of 450,000 square meters; 19.Tax Declaration No. 2560. A parcel of land situated in Salang Bato which area is included in item no. 18. 20.A parcel of land situated in Burgos St. (Papers cannot be located but subject lot is known to both parties). 21.A parcel of land situated in Burgos St., containing an area of 5,000 square meters. (Papers cannot be located but subject lot is known to both parties). 22.A parcel of land situated in Gomez St., containing an area of 800 square meters. (Papers cannot be located but subject lot is known to both parties). 23.A parcel of land situated in Gomez St., containing an area of 1,050 square meters. (Papers cannot be located but subject lot is known to both parties). 24.A parcel of land situated in Gomez St. (Papers cannot be located but subject lot is known to both parties). 25.A parcel of land situated in Zamora St., containing an area of 3,605. (Papers cannot be located but subject lot is known to both parties). 26.Tax Declaration No. 2412: A parcel of land situated in Caboam, containing an area of 12,867 square meters; 27.A parcel of land situated in Dra. Amelia St." On the other hand, the commissioners listed the following properties as acquired by Jose Velasquez, Sr. on February 11, 1921 or after the death of Victorina Real:

28.Tax Declaration No. 2547. A parcel of land situated in Barandilla, containing an area of 21,566 square meters; 29.A parcel of land situated in Barandilla, containing an area of 93.191 square meters. (Commissioner's Inventory, Rollo, pp. 355-360). Worth noting are the following findings of the commissioners: "3)That among the properties acquired by the late Jose Velasquez, Sr. during his lifetime, only the one mentioned in Item 7 of the Inventory (Annex "A") is still intact. It is situated in Bagumbayan, Sta. Maria, Laguna, and is containing an area of 80,258 square meters, more or less; "4)That Item 8 of the Inventory is only 200,000 square meters, more or less in Tax Declaration No. 3541, but as per Survey caused by the defendants (which is not yet approved) it contains an area of 330,345 square meters. That the Tax Declaration of said parcel of land is under the name of Canuta Pagkatipunan, but plaintiff Jose Velasquez, Jr. is the one in possession of said property. That the area as contained in the Survey includes the area of the land mentioned in Item 7 of the Inventory (80,258 sq. m.); "5)That the other properties of the late Jose Velasquez Sr. were disposed of by the said decedent during his lifetime and some were sold and or disposed of by the parties and heirs of the late Jose Velasquez, Sr.; "6)That the Barandilla properties, as evidenced by the Venta Absoluta dated February 11, 1921 executed by Pedro Villanueva in favor of Jose Velasquez Sr., were disposed of portion by portion. It was sold by the late Jose Velasquez who disposed of some portions and the rest by either the plaintiffs or defendants. An area of 11,200 square meters more or less was DONATED (donacion propter Nupcias) in favor of Canuta Pagkatipunan by the decedent Jose Velasquez, Sr. as evidenced by Kasulatan ng Pambagong Documento Donacion Propter Nupcias notarized under Inst. 135;

Page 47; Book I; Series of 1947 of Notary Public Bonifacio de Ramos; "7)That the parcels of land appearing in Items 5 and 6 of the Inventory (Annex "A") were DONATED by the late Jose Velasquez Sr. to Guillermo Velasquez; "8)That parcels of land mentioned in Items 18 and 19 of the Inventory (Annex "A") were DONATED by the late Jose Velasquez, Sr. to Jose Velasquez, Jr. Said properties were sold by the Donee to Sps. Santiago Recio and Filomena Dimaculangan; "9)The property mentioned in Item 27, page 3 of the Inventory was given by the late Jose Velasquez, Sr. to one of his daughters, Dra. Amelia Velasquez while she was still living and now owned by her heirs; "10)A residential lot at 7 West Avenue, Quezon City, titled in the name of Canuta Pagkatipunan, was acquired from the PHHC (People's Homesite and Housing Corporation, now National Housing Authority) and presently occupied by the defendants." (Rollo, pp. 351-353) There is divergence of findings and opinion among the three members of the second set of commissioners with respect to the properties covered by Items 7 and 8 and the property in the unnumbered item relating to Lot 2-A West Avenue, Quezon City and the house thereon of the Inventory submitted by the first set of commissioners. They refuse to make findings as to the nature of the properties because the petitioners had caused the issuance of titles covering said properties. However, all the commissioners were in agreement that all the other properties listed in the Inventory belonged to the conjugal partnership of the first marriage. The records before Us will show that the properties covered by items 7 and 8 were originally declared for taxation purposes in the names of the spouses Real and Velasquez. This has been admitted by Canuta Pagkatipunan during the hearing before the Commissioner and is duly supported by documentary evidence. LexLib After the death of Jose Velasquez, Sr. the full possession of said property was acquired by Canuta Pagkatipunan. On March 4, 1967, she sold the same

property to the spouses Moises Santos and Magdalena Pagkatipunan, her brother-in-law and sister, respectively (they were previously impleaded in the trial court as party-defendants). Subsequently, Tax Declaration No. 4843 was issued in the names of the said spouses who later resold the same property to Canuta Pagkatipunan. Thereafter, tax declaration covering said property was issued in her name. During the pendency of this suit, this property was subdivided and assigned by Canuta Pagkatipunan in favor of her thirteen children. The latter caused the issuance of separate free patent titles in their favor covering the subdivided lots conveyed to them by their mother. Original Certificates of Title Nos. P-2000 to P-2012 were accordingly issued in their names. With regard to the West Avenue property it is not disputed that said residential lot was purchased on installments from People's Homesite and Housing Corporation (now National Housing Authority) by the spouses Jose Velasquez Sr. and Canuta Pagkatipunan. The installments were paid by the said spouses until Jose Velasquez, Sr. died on February 24, 1961. Canuta Pagkatipunan, with the help of some of her children, shouldered the payment of the remaining installments until said property was fully paid in 1965. On February 23, 1968, the PHHC executed a deed of absolute sale conveying the said house and lot to Canuta Pagkatipunan. On August 11, 1980, a judgment was rendered by the trial court: "1)Declaring the properties listed in the Inventory submitted by the Commissioners on May 9, 1975, as belonging to the estate of the conjugal partnership of the deceased spouses Jose Velasquez, Sr. and Victorina Real; "2)Confirming all the conveyances, either by way of sale or donation, executed by Jose Velasquez, Sr. during his lifetime; "3)Declaring null and void, sham and fictitious, the following sales, transfers, assignments or conveyances: (a) the sale executed by Canuta Pagkatipunan in favor of her sister Magdalena Pagkatipunan in favor of Canuta Pagkatipunan (sic); (b) the deeds of assignments executed by Canuta Pagkatipunan in favor of her children, covering the properties listed in Items 7 and 8 of the Inventory; and ordering defendants (petitioners) to reconvey in favor of the plaintiffs (private respondents)

the parcels of land covered by Patent Titles Nos. P-2000 to P-2012; "4)Declaring as null, fictitious and fraudulent the sales by Canuta Pagkatipunan in favor of her children and her sister Magdalena Pagkatipunan and brother-in-law Moises Santos, listed in paragraph 13 of the Amended Complaint; declaring the plaintiffs owners of the said properties; and ordering the defendant Canuta Pagkatipunan and her children-defendants to deliver possession of said properties to the plaintiffs; "5)Ordering the partition of the house and lot in West Avenue, Quezon City in the following manner:

"(a)One-half undivided portion to defendant Canuta Pagkatipunan; and the other half appertaining to Jose Velasquez, Sr. to be divided among his heirs, to wit: 1/18 undivided portion to Canuta Pagkatipunan; 1/18 undivided portion to Lourdes Velasquez; 1/18 undivided portion to the plaintiffs Edgardo, Lolita, Minerva, Cynthia and Jennifer, all surnamed Velasquez; 1/18 undivided portion to the plaintiffs Teresa Magtibay and her children Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez; 1/18 undivided portion to the plaintiffs Cesar, Adolfo, Evelyn, Angelita, Ruben and Carmencita, all surnamed Gonzales;

1/18 undivided portion to each of the defendants Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia, Victoria and Carlos, all surnamed Velasquez; "6)Ordering the defendant Canuta Pagkatipunan and her children-defendants to pay to the plaintiffs the sum of P5,000.00, as reimbursement for attorney's fees; "7)The defendant Canuta Pagkatipunan and her childrendefendants are likewise ordered to pay the costs of this suit; "8)The case against the other defendants, other than Canuta Pagkatipunan and her children and the spouses Moises Santos and Magdalena Pagkatipunan, is ordered dismissed." (pp. 614-617, Rollo). Petitioners appealed to the respondent Intermediate Appellate Court. On February 7, 1985, the Intermediate Appellate Court, Third Civil Cases Division promulgated a decision, affirming the decision of the trial court, with the modification that the entire house and lot in West Avenue, Quezon City be divided into two; one-half value to the petitioners Canuta Pagkatipunan and her 13 children to the extent of their respective proportional contributions and the other half value, to the second conjugal partnership of Jose Velasquez, Sr. and Canuta Pagkatipunan to be partitioned one-fourth to the wife and the other one-fourth appertaining to the deceased Jose Velasquez, Sr. to be divided equally among his heirs. Hence, this instant petition for review pointing out the following four (4) assignments of error, to wit: I "THE TRIAL COURT ERRED IN HOLDING THAT THE ENTIRE ESTATE LISTED IN THE INVENTORY SUBMITTED BY THE COMMISSIONERS ON MAY 9, 1975 AS BELONGING TO THE DECEASED SPOUSES JOSE VELASQUEZ, SR. AND VICTORINA REAL. II

"THAT THE LOWER COURT ERRED IN CONFIRMING ALL THE CONVEYANCES EITHER BY WAY OF SALE OR DONATION EXECUTED BY JOSE VELASQUEZ, SR. DURING HIS LIFETIME. III "THAT THE LOWER COURT ERRED IN DECLARING NULL AND VOID, SHAM AND FICTITIOUS THE FOLLOWING SALES: a) THE SALE EXECUTED BY CANUTA PAGKATIPUNAN IN FAVOR OF HER SISTER MAGDALENA PAGKATIPUNAN AND BROTHER-INLAW MOISES SANTOS; b) THE RESALE EXECUTED BY MOISES SANTOS AND MAGDALENA PAGKATIPUNAN IN FAVOR OF CANUTA PAGKATIPUNAN c) THE DEEDS OF ASSIGNMENT EXECUTED BY CANUTA PAGKATIPUNAN IN FAVOR OF HER CHILDREN: COVERING THE PROPERTIES LISTED IN ITEMS 7 AND 8 OF THE INVENTORY; AND ORDERING DEFENDANT-APPELLANT CANUTA PAGKATIPUNAN AND HER CHILDREN DEFENDANTSAPPELLANTS TO RECONVEY IN FAVOR OF THE PLAINTIFFS-APPELLEES THE PARCELS OF LAND COVERED BY PATENT TITLES NOS. P2-000 TO P2012. IV "THAT THE TRIAL COURT ERRED IN ORDERING THE PARTITION OF THE HOUSE AND LOT IN WEST AVENUE, QUEZON CITY, ONE-HALF UNDIVIDED PORTION TO DEFENDANT-APPELLANT CANUTA PAGKATIPUNAN AND THE OTHER HALF TO JOSE VELASQUEZ, SR." (pp. 21-22, Rollo) After a careful review of the records and the arguments presented by both parties, the Court finds that both the trial court and the respondent Intermediate Appellate Court failed to consider some basic principles observed in the law on succession. Such an oversight renders the appealed decision defective and hard to sustain. prcd It is a basic rule that before any conclusion about the legal share due to the heirs may be reached, it is necessary that certain steps be taken first. In the assailed decision, the respondent court affirmed the trial court's ruling, that Jose Velasquez, Sr. had already disposed of and exhausted his corresponding share in the conjugal partnership owned by him and Victorina

Real, so that his heirs have nothing more to inherit from him, and that accordingly, whatever remaining portion of the conjugal property must necessarily appertain only to the private respondents as heirs of the deceased Victorina Real. Clearly, the trial court failed to consider among others, the following provisions of the Civil Code: "ART. 908.To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. "To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them." "ART. 1061.Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition." It is undeniable that numerous donations inter vivos were made by Jose Velasquez, Sr. in favor of some of his compulsory heirs. They include among others, the donation made in favor of Guillermo Velasquez on February 26, 1953, consisting of 403,000 square meters (Items 5 and 6); the donation made in 1926 in favor of Jose Velasquez, Jr., consisting of 450,000 square meters (Item No. 18); the donation in favor of Amelia Velasquez (Item No. 27), and the donation in favor of Canuta Pagkatipunan, consisting of 11,000 square meters (part of Item No. 29) (Commissioner's Report, Rollo, pp. 355360). It appears that there was no determination whatsoever of the gross value of the conjugal properties of Jose Velasquez, Sr. and Victorina Real. Obviously it is impossible to determine the conjugal share of Jose Velasquez, Sr. from the said property relationship. Likewise, no collation of the donations he executed during his lifetime was undertaken by the trial court. Thus, it would be extremely difficult to ascertain whether or not such donations trenched on the heirs' legitime so that the same may be considered subject to reduction for being inofficious. Article 909 of the Civil Code provides:

"Art. 909.Donations given to children shall be charged to their legitime. "Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. "Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code." With the avowed specific provisions of the aforesaid laws respecting collation, which are ruled controlling even in intestate succession, this Court finds that the lower court's ruling adjudicating the remaining portion of the conjugal estate to the private respondents is purely speculative and conjectural. Relative to the sale executed by Canuta Pagkatipunan to the spouses Magdalena Pagkatipunan and Moises Santos; the resale of the same property to her; and the subsequent deeds of assignment she executed in favor of her children, the trial court had clearly established that Canuta Pagkatipunan employed fraudulent acts to acquire title over the said properties. Hence, the trial court, as well as the respondent court are correct in ruling that the said sales and assignments are null and void, sham and fictitious. The pertinent portion of the trial court's decision reads as follows: "From the evidence adduced by the parties during the hearing before this Court and before the Commissioners, these properties were acquired on November 19, 1918 by the spouses Jose Velasquez, Sr. and Victoria Real from Estanislao Balasoto (Exh. H-5, Commissioner). Said property was originally declared for taxation purposes in the names of said spouses. (Exh. H-Commissioner). On March 4, 1967, defendant Canuta Pagkatipunan sold the same property to the spouses Moises Santos and Magdalena Pagkatipunan (Exh. H-1-Commissioner). The vendee Magdalena Pagkatipunan is the sister of the defendant Canuta Pagkatipunan. Subsequently, Tax Declaration No. 4843 (Exh. H-2-Commissioner) was issued in the names of the spouses Moises Santos and Magdalena Pagkatipunan resold (sic) the same property to Canuta Pagkatipunan (Exh. H-3-Commissioner). Thereafter, tax declaration covering said property was

issued in the name of Canuta Pagkatipunan (Exhibit H-4Commissioner). During the pendency of this suit, this property was subdivided and assigned by Canuta Pagkatipunan in favor of her children, the defendants Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Elena, Patricia, Julio, Victoria and Carlos, all surnamed Velasquez. Said defendantschildren of Canuta Pagkatipunan caused the issuance of free patent titles in their favor covering the subdivided lots conveyed to them respectively by their mother (Exh. 2, 2A to 2-L). "It is evident that the parcels of land under Items 7 and 8 of the Inventory belonged to the conjugal partnership of the spouses Jose Velasquez, Sr. and Victorina Real. Canuta Pagkatipunan had no right to alienate the same. Her conveyance of the same property to her brother-inlaw and sister is fictitious or simulated. Ten (10) days after she executed her sale, the same property was resold to her by the vendees. She utilized said conveyance and reconveyance only for the purpose of securing a tax declaration in her name over said property. Her subsequent subdivision of said lot and transfer of the subdivided lots to each of their children further show her fraudulent intent to deprive the plaintiffs of their rightful shares in the disputed property." (Rollo, pp. 606-607) Despite the several pleadings filed by the petitioners in this Court, they did not rebut the foregoing findings of the trial court but merely held on to their argument that since Free Patent Titles Nos. P-2000 to P-2012 were already issued in their names, their title thereto is indefeasible and incontrovertible. This is a misplaced argument. prcd

period of ten years (Pajarillo v. Intermediate Appellate Court, G.R. No. 72908, August 11, 1969, 176 SCRA 340). Since petitioners asserted claims of exclusive ownership over the said parcels of land but acted in fraud of the private respondents, the former may be held to act as trustees for the benefit of the latter, pursuant to the provision of Article 1456 of the Civil Code: "ART. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes." But while the trial court has the authority to order the reconveyance of the questioned titles, We cannot agree that the reconveyance should be made in favor of the private respondents. The reason is that it is still unproven whether or not the private respondents are the only ones entitled to the conjugal properties of Jose Velasquez, Sr. and Victoria Real. It is to be noted that as the lawful heirs of Jose Velasquez, Sr. the herein petitioners are also entitled to participate in his conjugal share. To reconvey said property in favor of the private respondents alone would not only be improper but will also make the situation more complicated. There are still things to be done before the legal share of all the heirs can be properly adjudicated. Relative to the last assignment of error, We find the ruling made by the respondent appellate court proper and in accord with law insofar as it adjudicated the one-half (1/2) portion of the house and lot situated at West Avenue, Quezon City, as belonging to the petitioners to the extent of their respective proportional contributions, and the other half to the conjugal partnership of Jose Velasquez, Sr. and Canuta Pagkatipunan. We must modify it, however, as it readily partitioned the conjugal share of Jose Velasques, Sr. (1/2 of the conjugal property or 1/4 of the entire house and lot) to his 18 heirs. As already said, no conclusion as to the legal share due to the compulsory heirs can be reached in this case without (1 ) determining first the net value of the estate of Jose Velasquez, Sr.; (2) collating all the donations inter vivos in favor of some of the heirs; and (3) ascertaining the legitime of the compulsory heirs. LLjur ACCORDINGLY, the decision of the trial court as modified by the respondent appellate court is hereby SET ASIDE except insofar as it:

The fact that they had succeeded in securing title over the said parcels of land does not warrant the reversal of the trial court's ruling that the above mentioned sales and assignments were sham and fictitious. A Torrens title does not furnish a shield for fraud notwithstanding the long-standing rule that registration is a constructive notice of title binding upon the whole world. The legal principle is that if the registration of the land is fraudulent and the person in whose name the land is registered thus holds it as a mere trustee, the real owner is entitled to file an action for reconveyance of the property within a

(a)declared the properties listed in the Inventory submitted by the commissioners on May 9, 1975 as belonging to the estate of the conjugal partnership of the spouses Jose Velasquez, Sr. and Victorina Real; b)declared null and void, sham and fictitious, the following sales, transfers, assignments or conveyances: 1)the sale executed by Canuta Pagkatipunan in favor of her sister Magdalena Pagkatipunan; 2) the resale of the same property executed in favor of Canuta Pagkatipunan; and 3) the deeds of assignments executed by Canuta Pagkatipunan in favor of her 13 children; covering the properties listed in Items 7 and 8; c)declared as null and void all the other conveyances made by Canuta Pagkatipunan with respect to Item No. 13 of the inventory; and d)dismissed the case against the other defendants except Canuta Pagkatipunan and her children and the spouses Moises Santos and Magdalena Pagkatipunan. Civil Case No. SC-894 is hereby remanded to the Regional Trial Court of Laguna, for further proceedings and the same Court is directed to: a)follow the procedure for partition herein prescribed; b)expand the scope of the trial to cover other possible illegal dispositions of the first conjugal partnership properties not only by Canuta Pagkatipunan but also by the other heirs as can be shown in the records; c)include the one-fourth (1/4) share of Jose Velasquez, Sr. in the residential house in Quezon City with his conjugal share under his first marriage, if any, to determine his net estate at the time of his death. The trial court's pronouncement as to cost and damages is hereby deleted.

SO ORDERED. Narvasa, Cruz and Grio-Aquino, JJ., concur. Gancayco, J., is on leave. [G.R. No. 169454. December 27, 2007.] THE HEIRS OF MARCELINO DORONIO, NAMELY: REGINA AND FLORA, BOTH SURNAMED DORONIO, petitioners, vs. HEIRS OF FORTUNATO DORONIO, NAMELY: TRINIDAD ROSALINA DORONIO-BALMES, MODING DORONIO, FLORENTINA DORONIO, AND ANICETA ALCANTARA-MANALO, respondents.

de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados. 4 The spouses had children but the records fail to disclose their number. It is clear, however, that Marcelino Doronio and Fortunato Doronio, now both deceased, were among them and that the parties in this case are their heirs. Petitioners are the heirs of Marcelino Doronio, while respondents are the heirs of Fortunato Doronio. On April 24, 1919, a private deed of donation propter nuptias 5 was executed by spouses Simeon Doronio and Cornelia Gante in favor of Marcelino Doronio and the latter's wife, Veronica Pico. One of the properties subject of said deed of donation is the one that it described as follows: Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials also a part of the dowry. Value . . . 200.00. 6 HTASIa It appears that the property described in the deed of donation is the one covered by OCT No. 352. However, there is a significant discrepancy with respect to the identity of the owner of adjacent property at the eastern side. Based on OCT No. 352, the adjacent owners are Zacarias Najorda and Alejandro Najorda, whereas based on the deed of donation, the owner of the adjacent property is Fortunato Doronio. Furthermore, said deed of donation remained a private document as it was never notarized. 7 Both parties have been occupying the subject land for several decades 8 although they have different theories regarding its present ownership. According to petitioners, they are now the owners of the entire property in view of the private deed of donation propter nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico. Respondents, on the other hand, claim that only half of the property was actually incorporated in the said deed of donation because it stated that Fortunato Doronio, instead of Zacarias Najorda and Alejandro Najorda, is the owner of the adjacent property at the eastern side. Respondents posit that the donors respected and segregated the possession of Fortunato Doronio of the

DECISION

REYES, R.T., J p: For Our review on certiorari is the Decision 1 of the Court of Appeals (CA) reversing that 2 of the Regional Trial Court (RTC), Branch 45, Anonas, Urdaneta City, Pangasinan, in an action for reconveyance and damages. The CA declared respondents as rightful owners of one-half of the subject property and directed petitioners to execute a registerable document conveying the same to respondents. The Facts Spouses Simeon Doronio and Cornelia Gante, now both deceased, were the registered owners of a parcel of land located at Barangay Cabalitaan, Asingan, Pangasinan covered by Original Certificate of Title (OCT) No. 352. 3 The courts below described it as follows: Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con propriedad

eastern half of the land. They are the ones who have been possessing said land occupied by their predecessor, Fortunato Doronio. Eager to obtain the entire property, the heirs of Marcelino Doronio and Veronica Pico filed, on January 11, 1993, before the RTC in Urdaneta, Pangasinan a petition "For the Registration of a Private Deed of Donation" 9 docketed as Petition Case No. U-920. No respondents were named in the said petition 10 although notices of hearing were posted on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen. 11 During the hearings, no one interposed an objection to the petition. 12 After the RTC ordered a general default, 13 the petition was eventually granted on September 22, 1993. This led to the registration of the deed of donation, cancellation of OCT No. 352 and issuance of a new Transfer Certificate of Title (TCT) No. 44481 in the names of Marcelino Doronio and Veronica Pico. 14 Thus, the entire property was titled in the names of petitioners' predecessors. On April 28, 1994, the heirs of Fortunato Doronio filed a pleading before the RTC in the form of a petition in the same Petition Case No. U-920. The petition was for the reconsideration of the decision of the RTC that ordered the registration of the subject deed of donation. It was prayed in the petition that an order be issued declaring null and void the registration of the private deed of donation and that TCT No. 44481 be cancelled. However, the petition was dismissed on May 13, 1994 on the ground that the decision in Petition Case No. U-920 had already become final as it was not appealed. Determined to remain in their possessed property, respondent heirs of Fortunato Doronio (as plaintiffs) filed an action for reconveyance and damages with prayer for preliminary injunction 15 against petitioner heirs of Marcelino Doronio (as defendants) before the RTC, Branch 45, Anonas, Urdaneta City, Pangasinan. Respondents contended, among others, that the subject land is different from what was donated as the descriptions of the property under OCT No. 352 and under the private deed of donation were different. They posited that spouses Simeon Doronio and Cornelia Gante intended to donate only one-half of the property. During the pre-trial conference, the parties stipulated, among others, that the property was originally covered by OCT No. 352 which was cancelled by TCT No. 44481. They also agreed that the issues are: (1) whether or not there was a variation in the description of the property subject of the private deed of donation and OCT No. 352; (2) whether or not respondents had acquired onehalf of the property covered by OCT No. 352 by acquisitive prescription; (3)

whether or not the transfer of the whole property covered by OCT No. 352 on the basis of the registration of the private deed of donation notwithstanding the discrepancy in the description is valid; (4) whether or not respondents are entitled to damages; and (5) whether or not TCT No. 44481 is valid. 16 RTC Decision After due proceedings, the RTC ruled in favor of petitioner heirs of Marcelino Doronio (defendants). It concluded that the parties admitted the identity of the land which they all occupy; 17 that a title once registered under the torrens system cannot be defeated by adverse, open and notorious possession or by prescription; 18 that the deed of donation in consideration of the marriage of the parents of petitioners is valid, hence, it led to the eventual issuance of TCT No. 44481 in the names of said parents; 19 and that respondent heirs of Fortunato Doronio (plaintiffs) are not entitled to damages as they are not the rightful owners of the portion of the property they are claiming. 20 The RTC disposed of the case, thus: WHEREFORE, premises considered, the Court hereby renders judgment DISMISSING the herein Complaint filed by plaintiffs against defendants. 21 Disagreeing with the judgment of the RTC, respondents appealed to the CA. They argued that the trial court erred in not finding that respondents' predecessor-in-interest acquired one-half of the property covered by OCT No. 352 by tradition and/or intestate succession; that the deed of donation dated April 26, 1919 was null and void; that assuming that the deed of donation was valid, only one-half of the property was actually donated to Marcelino Doronio and Veronica Pico; and that respondents acquired ownership of the other half portion of the property by acquisitive prescription. 22 CcaASE CA Disposition In a Decision dated January 26, 2005, the CA reversed the RTC decision with the following disposition: WHEREFORE, the assailed Decision dated June 28, 2002 is REVERSED and SET ASIDE. Declaring the appellants as rightful owners of one-half of the property now covered by TCT No. 44481, the appellees are

hereby directed to execute a registerable document conveying the same to appellants. SO ORDERED. 23 The appellate court determined that "(t)he intention to donate half of the disputed property to appellees' predecessors can be gleaned from the disparity of technical descriptions appearing in the title (OCT No. 352) of spouses Simeon Doronio and Cornelia Gante and in the deed of donation propter nuptias executed on April 24, 1919 in favor of appellees' predecessors." 24 The CA based its conclusion on the disparity of the following technical descriptions of the property under OCT No. 352 and the deed of donation, to wit: The court below described the property covered by OCT No. 352 as follows: "Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados." On the other hand, the property donated to appellees' predecessors was described in the deed of donation as: "Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials also a part of the dowry. Value . . . 200.00." 25 (Emphasis ours)

Taking note "that the boundaries of the lot donated to Marcelino Doronio and Veronica Pico differ from the boundaries of the land owned by spouses Simeon Doronio and Cornelia Gante," the CA concluded that spouses Simeon Doronio and Cornelia Gante donated only half of the property covered by OCT No. 352. 26 Regarding the allegation of petitioners that OCT No. 352 is inadmissible in evidence, the CA pointed out that, "while the OCT is written in the Spanish language, this document already forms part of the records of this case for failure of appellees to interpose a timely objection when it was offered as evidence in the proceedings a quo. It is a well-settled rule that any objection to the admissibility of such evidence not raised will be considered waived and said evidence will have to form part of the records of the case as competent and admitted evidence." 27 The CA likewise ruled that the donation of the entire property in favor of petitioners' predecessors is invalid on the ground that it impairs the legitime of respondents' predecessor, Fortunato Doronio. On this aspect, the CA reasoned out: TIaDHE Moreover, We find the donation of the entire property in favor of appellees predecessors invalid as it impairs the legitime of appellants' predecessor. Article 961 of the Civil Code is explicit. "In default of testamentary heirs, the law vests the inheritance, . . ., in the legitimate . . . relatives of the deceased, . . . . As Spouses Simeon Doronio and Cornelia Gante died intestate, their property shall pass to their lawful heirs, namely: Fortunato and Marcelino Doronio. Donating the entire property to Marcelino Doronio and Veronica Pico and excluding another heir, Fortunato, tantamounts to divesting the latter of his rightful share in his parents' inheritance. Besides, a person's prerogative to make donations is subject to certain limitations, one of which is that he cannot give by donation more than what he can give by will (Article 752, Civil Code). 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. 28 Petitioners were not pleased with the decision of the CA. Hence, this petition under Rule 45.

Issues Petitioners now contend that the CA erred in: 1.DECLARING ADMISSIBILITY OF THE ORIGINAL CERTIFICATE OF TITLE NO. 352 DESPITE OF LACK OF TRANSLATION THEREOF. 2.(RULING THAT) ONLY HALF OF THE DISPUTED PROPERTY WAS DONATED TO THE PREDECESSORS-IN-INTEREST OF THE HEREIN APPELLANTS. cHDEaC 3.(ITS) DECLARATION THAT THE DONATION PROPTER NUPTIAS IS INNOFICIOUS, IS PREMATURE, AND THUS IT IS ILLEGAL AND UNPROCEDURAL. 29 Our Ruling OCT No. 352 in Spanish Although Not Translated into English or Filipino Is Admissible For Lack of Timely Objection Petitioners fault the CA for admitting OCT No. 352 in evidence on the ground that it is written in Spanish language. They posit that "(d)ocumentary evidence in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino." 30 The argument is untenable. The requirement that documents written in an unofficial language must be accompanied with a translation in English or Filipino as a prerequisite for its admission in evidence must be insisted upon by the parties at the trial to enable the court, where a translation has been impugned as incorrect, to decide the issue. 31 Where such document, not so accompanied with a translation in English or Filipino, is offered in evidence and not objected to, either by the parties or the court, it must be presumed that the language in which the document is written is understood by all, and the document is admissible in evidence. 32 Moreover, Section 36, Rule 132 of the Revised Rules of Evidence provides:

SECTION 36.Objection. Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for the objections must be specified. (Emphasis ours) Since petitioners did not object to the offer of said documentary evidence on time, it is now too late in the day for them to question its admissibility. The rule is that evidence not objected may be deemed admitted and may be validly considered by the court in arriving at its judgment. 33 This is true even if by its nature, the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time. 34 As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit "A," that is, OCT No. 352 in their comment 35 on respondents' formal offer of documentary evidence. In the said comment, petitioners alleged, among others, that "Exhibits A, B, C, D, E, F and G, are admitted but not for the purpose they are offered because these exhibits being public and official documents are the best evidence of that they contain and not for what a party would like it to prove." 36 Said evidence was admitted by the RTC. 37 Once admitted without objection, even though not admissible under an objection, We are not inclined now to reject it. 38 Consequently, the evidence that was not objected to became property of the case, and all parties to the case are considered amenable to any favorable or unfavorable effects resulting from the said evidence. 39 EAcTDH Issues on Impairment of Legitime Should Be Threshed Out in a Special Proceeding, Not in Civil Action for Reconveyance and Damages On the other hand, petitioners are correct in alleging that the issue regarding the impairment of legitime of Fortunato Doronio must be resolved in an action for the settlement of estates of spouses Simeon Doronio and Cornelia Gante.

It may not be passed upon in an action for reconveyance and damages. A probate court, in the exercise of its limited jurisdiction, is the best forum to ventilate and adjudge the issue of impairment of legitime as well as other related matters involving the settlement of estate. 40 An action for reconveyance with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding. Special proceedings require the application of specific rules as provided for in the Rules of Court. 41 As explained by the Court in Natcher v. Court of Appeals: 42 Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in this wise: . . . a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to specific rules prescribed for a special civil action. xxx xxx xxx c)A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact. As could be gleaned from the foregoing, there lies a marked distinction between an action and a special proceeding. An action is a formal demand of one's right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term "special proceeding" may be defined as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so

provides. In special proceedings, the remedy is granted generally upon an application or motion. Citing American Jurisprudence, a noted authority in Remedial Law expounds further: It may accordingly be stated generally that actions include those proceedings which are instituted and prosecuted according to the ordinary rules and provisions relating to actions at law or suits in equity, and that special proceedings include those proceedings which are not ordinary in this sense, but is instituted and prosecuted according to some special mode as in the case of proceedings commenced without summons and prosecuted without regular pleadings, which are characteristics of ordinary actions . . . . A special proceeding must therefore be in the nature of a distinct and independent proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon notice. aSTAIH Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court. Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of the probate court in the exercise of its limited jurisdiction. Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings, and the final order of the court

thereon shall be binding on the person raising the questions and on the heir. While it may be true that the Rules used the word "may," it is nevertheless clear that the same provision contemplates a probate court when it speaks of the "court having jurisdiction of the estate proceedings."

Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and resolve the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question. Moreover, under the present circumstances, the RTC of Manila, Branch 55, was not properly constituted as a probate court so as to validly pass upon the question of advancement made by the decedent Graciano Del Rosario to his wife, herein petitioner Natcher. We likewise find merit in petitioners' contention that before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps be taken first. 43 The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only then can it be ascertained whether or not a donation had prejudiced the legitimes. 44 Declaration of Validity of Donation Can Be Challenged by an Interested Party Not Impleaded in Petition for Quieting of Title or Declaratory Relief or Where There is No Res Judicata. Moreover, This Court Can Consider a Factual Matter or Unassigned Error in the Interest of Substantial Justice.

Nevertheless, petitioners cannot preclude the determination of validity of the deed of donation on the ground that (1) it has been impliedly admitted by respondents; (2) it has already been determined with finality by the RTC in Petition Case No. U-920; or (3) the only issue in an action for reconveyance is who has a better right over the land. 45 The validity of the private deed of donation propter nuptias in favor of petitioners' predecessors was one of the issues in this case before the lower courts. The pre-trial order 46 of the RTC stated that one of the issues before it is "(w)hether or not the transfer of the whole property covered by OCT No. 352 on the basis of the private deed of donation notwithstanding the discrepancy in the description is valid." Before the CA, one of the errors assigned by respondents is that "THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE DEED OF DONATION DATED APRIL 26, 1919 WAS NULL AND VOID." 47 cHEATI The issue of the validity of donation is likewise brought to Us by petitioners as they stated in their Memorandum 48 that one of the issues to be resolved is regarding the alleged fact that "THE HONORABLE COURT OF APPEALS ERRED IN FINDING THE DONATION INVALID." We are thus poised to inspect the deed of donation and to determine its validity. We cannot agree with petitioners' contention that respondents may no longer question the validity of the deed of donation on the ground that they already impliedly admitted it. Under the provisions of the Civil Code, a void contract is inexistent from the beginning. The right to set up the defense of its illegality cannot be waived. 49 The right to set up the nullity of a void or non-existent contract is not limited to the parties as in the case of annullable or voidable contracts; it is extended to third persons who are directly affected by the contract. 50 Consequently, although respondents are not parties in the deed of donation, they can set up its nullity because they are directly affected by the same. 51 The subject of the deed being the land they are occupying, its enforcement will definitely affect them. Petitioners cannot also use the finality of the RTC decision in Petition Case No. U-920 52 as a shield against the verification of the validity of the deed of donation. According to petitioners, the said final decision is one for quieting of title. 53 In other words, it is a case for declaratory relief under Rule 64 (now Rule 63) of the Rules of Court, which provides:

SECTION 1.Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, or ordinance, may, before breach or violation thereof, bring an action to determine any question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder. An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this rule. SECTION 2. Parties. All persons shall be made parties who have or claim any interest which would be affected by the declaration; and no declaration shall, except as otherwise provided in these rules, prejudice the rights of persons not parties to the action. (Emphasis ours) However, respondents were not made parties in the said Petition Case No. U920. Worse, instead of issuing summons to interested parties, the RTC merely allowed the posting of notices on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan. As pointed out by the CA, citing the ruling of the RTC: . . . In the said case or Petition No. U-920, notices were posted on the bulletin boards of barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan, so that there was a notice to the whole world and during the initial hearing and/or hearings, no one interposed objection thereto. 54 Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in personam, but being against the person in respect of the res, these proceedings are characterized as quasi in rem. 55 The judgment in such proceedings is conclusive only between the parties. 56 Thus, respondents are not bound by the decision in Petition Case No. U-920 as they were not made parties in the said case. aATESD The rules on quieting of title 57 expressly provide that any declaration in a suit to quiet title shall not prejudice persons who are not parties to the action.

That respondents filed a subsequent pleading 58 in the same Petition Case No. U-920 after the decision there had become final did not change the fact that said decision became final without their being impleaded in the case. Said subsequent pleading was dismissed on the ground of finality of the decision. 59 Thus, the RTC totally failed to give respondents their day in court. As a result, they cannot be bound by its orders. Generally accepted is the principle that no man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by judgment rendered by the court. 60 Moreover, for the principle of res judicata to apply, the following must be present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4) the two actions involve identical parties, subject matter and causes of action. 61 The fourth element is not present in this case. The parties are not identical because respondents were not impleaded in Petition Case No. U-920. While the subject matter may be the same property covered by OCT No. 352, the causes of action are different. Petition Case No. U-920 is an action for declaratory relief while the case below is for recovery of property. We are not persuaded by petitioners' posture that the only issue in this action for reconveyance is who has a better right over the land; and that the validity of the deed of donation is beside the point. 62 It is precisely the validity and enforceability of the deed of donation that is the determining factor in resolving the issue of who has a better right over the property. Moreover, notwithstanding procedural lapses as to the appropriateness of the remedies prayed for in the petition filed before Us, this Court can brush aside the technicalities in the interest of justice. In some instances, this Court even suspended its own rules and excepted a case from their operation whenever the higher interests of justice so demanded. 63 Moreover, although respondents did not directly raise the issue of validity of the deed of donation at the commencement of the case before the trial court, it was stipulated 64 by the parties during the pre-trial conference. In any event, this Court has authority to inquire into any question necessary in arriving at a just decision of a case before it. 65 Though not specifically questioned by the parties, additional issues may also be included, if deemed important for substantial justice to be rendered. 66 Furthermore, this Court has held that although a factual issue is not squarely raised below, still in the interest of substantial justice, this Court is not prevented from considering a pivotal factual matter. The Supreme Court is

clothed with ample authority to review palpable errors not assigned as such if it finds that their consideration is necessary in arriving at a just decision. 67 A rudimentary doctrine on appealed cases is that this Court is clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it finds that their consideration is necessary at arriving at a just decision of the case. 68 Also, an unassigned error closely related to an error properly assigned or upon which the determination of the question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as an error. 69 Donation Propter Nuptias of Real Property Made in a Private Instrument Before the New Civil Code Took Effect on August 30, 1950 is Void We now focus on the crux of the petition, which is the validity of the deed of donation. It is settled that only laws existing at the time of the execution of a contract are applicable to it and not the later statutes, unless the latter are specifically intended to have retroactive effect. 70 Accordingly, the Old Civil Code applies in this case as the donation propter nuptias was executed in 1919, while the New Civil Code took effect only on August 30, 1950.

Direct reconveyance to any of the parties is not possible as it has not yet been determined in a proper proceeding who among the heirs of spouses Simeon Doronio and Cornelia Gante is entitled to it. It is still unproven whether or not the parties are the only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As earlier intimated, there are still things to be done before the legal share of all the heirs can be properly adjudicated. 75 aDHCcE Titled Property Cannot Be Acquired By Another By Adverse Possession or Extinctive Prescription Likewise, the claim of respondents that they became owners of the property by acquisitive prescription has no merit. Truth to tell, respondents cannot successfully invoke the argument of extinctive prescription. They cannot be deemed the owners by acquisitive prescription of the portion of the property they have been possessing. The reason is that the property was covered by OCT No. 352. A title once registered under the torrens system cannot be defeated even by adverse, open and notorious possession; neither can it be defeated by prescription. 76 It is notice to the whole world and as such all persons are bound by it and no one can plead ignorance of the registration. 77 The torrens system is intended to guarantee the integrity and conclusiveness of the certificate of registration, but it cannot be used for the perpetration of fraud against the real owner of the registered land. 78 The system merely confirms ownership and does not create it. Certainly, it cannot be used to divest the lawful owner of his title for the purpose of transferring it to another who has not acquired it by any of the modes allowed or recognized by law. It cannot be used to protect a usurper from the true owner, nor can it be used as a shield for the commission of fraud; neither does it permit one to enrich himself at the expense of another. 79 Where such an illegal transfer is made, as in the case at bar, the law presumes that no registration has been made and so retains title in the real owner of the land. 80 Although We confirm here the invalidity of the deed of donation and of its resulting TCT No. 44481, the controversy between the parties is yet to be fully settled. The issues as to who truly are the present owners of the property and what is the extent of their ownership remain unresolved. The same may be properly threshed out in the settlement of the estates of the registered owners of the property, namely: spouses Simeon Doronio and Cornelia Gante.

WHEREFORE, the appealed Decision is REVERSED AND SET ASIDE. A new one is entered: (1)Declaring the private deed of donation propter nuptias in favor of petitioners predecessors NULL AND VOID; and (2)Ordering the Register of Deeds of Pangasinan to: (a)CANCEL Transfer Certificate of Title No. 44481 in the names of Marcelino Doronio and Veronica Pico; and (b)RESTORE Original Certificate of Title No. 352 in the names of its original owners, spouses Simeon Doronio and Cornelia Gante. SO ORDERED. Ynares-Santiago, Austria-Martinez, Chico-Nazario and Nachura, JJ., concur.

[G.R. No. L-23253. March 28, 1969.] IN THE MATTER OF THE PETITION FOR BETTY CHUA SY ALIAS "GRACE CABANGBANG" FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS. PACITA CHUA, petitioner-appellant, vs. MR. & MRS. BARTOLOME CABANGBANG, ET AL., respondentsappellees.

Under the Old Civil Code, donations propter nuptias must be made in a public instrument in which the property donated must be specifically described. 71 Article 1328 of the Old Civil Code provides that gifts propter nuptias are governed by the rules established in Title 2 of Book 3 of the same Code. Article 633 of that title provides that the gift of real property, in order to be valid, must appear in a public document. 72 It is settled that a donation of real estate propter nuptias is void unless made by public instrument. 73 In the instant case, the donation propter nuptias did not become valid. Neither did it create any right because it was not made in a public instrument. 74 Hence, it conveyed no title to the land in question to petitioners' predecessors. Logically, then, the cancellation of OCT No. 352 and the issuance of a new TCT No. 44481 in favor of petitioners' predecessors have no legal basis. The title to the subject property should, therefore, be restored to its original owners under OCT No. 352.

Francisco R. Sotto and Associate for petitioner-appellant. Teofilo F . Manalo for respondent-appellee Mr. & Mrs. Cabangbang. Enrico R. Castro for respondent-appellee Victor T. Villareal.

SYLLABUS

1.CIVIL LAW; PARENTAL AUTHORITY OVER CHILD; POWER OF COURTS TO DEPRIVE PARENTS OF PARENTAL AUTHORITY OVER THEIR CHILD. While in one breath, Art. 313 of the Civil Code lays down the rule that "Parental authority cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession, " it indicates in the next that "The courts may, in cases specified by law, deprive parents of their (parental) authority." 2.ID.; ID.; ID.; CASE AT BAR. The reasons that "petitioner is not exactly an upright woman" and "it will be for the welfare of the child" are not, strictly speaking, proper grounds in law to deprive a mother of her inherent right to parental authority over her child. 3.ID.; ID.; ID.; ABANDONMENT AS ONE OF SAID GROUNDS. Under Art. 332, abandonment is one of the grounds for depriving parents of parental authority over their children. To our mind, however, mere acquiescence without more - is not sufficient to constitute abandonment. 4.ID.; ID.; ID.; ID.; INSTANT CASE. The record yields a host of circumstances which, in their totality, unmistakably betray the petitioner's settled purpose and intention to completely forego all parental responsibilities and forever relinquish all parental claim in respect to the child. She continuously shunned the natural and legal obligations which she owed to the child; completely withheld her love, her care, and the opportunity to display maternal affection; and totally denied her support and maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the child and her total relinquishment of parental claim over her, can and should be inferred as a matter of law. 5.ID.; CUSTODY OF MINOR CHILDREN; AWARD OF CUSTODY OF CHILD TO STRANGER, WHEN PROPER. The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from awarding her custody to them. Indeed, the law provides that in certain cases the custody of a child may be awarded even to strangers, as against either the father or the mother or against both. Thus, in proceedings involving a child whose parents are separated either legally or de facto and where it appears that both parents are improper persons to whom to entrust the care, custody and control of the child, "the court may either designate the paternal or maternal grandparents of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society."

6.ID.; ID.; ID.; PROVISIONS OF LAW INVOLVED EXPLAINED. Sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's contention that the first sentence of Art. 363 of the Civil Code, which states that "In all questions on the care, custody, education and property of children, the latter's welfare shall be paramount . . . " applies only when the litigation involving a child is between the father and the mother. That the policy enunciated in the abovequoted legal provision is of general application, is evident from the use of adjective all meaning, the whole extent or quantity of, the entire number of, every one of (Webster's New World Dictionary of the American Language, College Edition, 1959, ed., p. 38). 7.ID.; ID.; ID.; SUIT BETWEEN PARENTS AND STRANGER OVER CUSTODY OF CHILD CONTEMPLATED UNDER RULES INVOLVED. It is error to argue that if the suit involving a child's custody is between a parent and a stranger, the law must necessarily award such custody to the parent. Sec. 7, Rule 99 of the Rules of Court, precisely contemplates, among other, a suit between a parent and a stranger who, in the words of the provision, is "some reputable resident of the province." And under the authority of the said rule, the court if it is for the best interest of the child - may take the child away from its parents and commit it to, inter alia, a benevolent person. 8.REMEDIAL LAW; WRIT OF HABEAS CORPUS; COVERAGE. Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." 9.ID.; ID.; PETITION THEREFOR WAS CORRECTLY DISMISSED IN INSTANT CASE. The petitioner has not proven that she is entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the contrary, by wantonly and completely shunting aside her legal and moral obligations toward her child, she must be deemed as having forfeited all legitimate legal and moral claim to her custody. The lower court acted correctly in dismissing her petition.

This is an appeal direct to this Court from the decision of May 21, 1964 of the Court of First Instance of Rizal dismissing Pacita Chua's petition for habeas corpus directed against Bartolome Cabangbang and his wife Flora Cabangbang. Pacita Chua, when still in the prime of youth, supported herself by working in nightclubs as a hostess. And sexual liaison she had with man after man without benefit of marriage. She first lived with a certain Chua Ben in 1950 by whom she had a child who died in infancy. She afterwards cohabited with Sy Sia Lay by whom she had two children named Robert and Betty Chua Sy. The latter child was born on December 15, 1957. Shortly after the birth of Betty, Pacita Chua and Sy Sia Lay separated. Finding no one to fall back on after their separation, Pacita Chua lingered in and around nightclubs and gambling joints, until she met Victor Tan Villareal. In due time she became the latter's mistress. In 1960 another child, a girl, was born to her. In 1961 when this last child was still an infant, she and Villareal separated. Without means to support the said child, Pacita Chua gave her away to a comadre in Cebu. Sometime in May 1958 Bartolome Cabangbang and his wife, a childless couple, acquired the custody of the child Betty who was then barely four months old. They have since brought her up as their own. They had her christened as Grace Cabangbang on September 12, 1958. 1 There is some testimonial conflict on how the Cabangbang spouses acquired custody of the girl Betty (or Grace). Pacita Chua avers that in 'October 1958, while she and Villareal were still living together, the latter surreptitiously took the child away and gave her to the Cabangbangs, allegedly in recompense for favors received. She supposedly came to know of the whereabouts of her daughter only in 1960 when the girl, who was then about three years old, was brought to her by Villareal, who shortly thereafter returned the child to the Cabangbangs allegedly thru threats, intimidation, fraud and deceit. The Cabangbang spouses assert in rebuttal that Mrs. Cabangbang found the child, wrapped in a bundle, at the gate of their residence; that she reared her as her own and grew very fond of her; and that nobody ever molested them until the child was 5-1/2 years of age. At all events, it is the lower court's finding that the child was given to the Cabangbang spouses by Villareal with the knowledge and consent of Pacita Chua. By letter dated June 6, 1963 addressed to the Cabangbang spouses, with copy furnished to Villareal, Pacita Chua thru counsel demanded the surrender to her of the custody of the child. Failing to secure such custody, Pacita Chua

DECISION

CASTRO, J p:

(hereinafter referred to as the petitioner) filed on June 14, 1963 a petition for habeas corpus with the Court of First Instance of Rizal, praying that the court grant her custody of and recognize her parental authority over the girl. Named respondents in the petition were Villareal and the spouses Cabangbang. On June 15, 1963 a writ was issued commanding the provincial sheriff of Rizal or any of his deputies to produce the body of Betty Chua Sy or Grace Cabangbang before the court a quo on June 17, 1963, at 8:30 a.m. However, for reasons not stated in the record, the child was not produced before the lower court as ordered. On June 21, 1963 Villareal filed his answer to the petition. The Cabangbangs filed their answer the next day. After due trial, the lower court on May 21, 1964 promulgated its decision, the dispositive portion of which reads as follows: "IN VIEW OF THE FOREGOING, the Court has come to the conclusion that it will be for the welfare of the child Betty Chua Sy also known as Grace Cabangbang to be under the custody of respondents Mr. and Mrs. Bartolome Cabangbang. Petition dismissed. No pronouncement as to costs." In this appeal now before us, the petitioner tenders for resolution two issues of law which, by her own formulation, read as follows: "The lower court erred when it [1] awarded the custody of petitioner's daughter Betty Chua Sy or Grace Cabangbang, who is less than seven (7) years old, in favor of respondents Mr. and Mrs. Bartolome Cabangbang, and [2] illegally deprived petitioner of parental authority over her daughter." We resolve both issues against the petitioner. I. Stated succinctly, the petitioner's thesis is that pursuant to the mandate contained in Article 363 of the Civil Code she cannot be separated from her child who was less than seven years of age, and that she cannot be deprived of her parental authority over the child because not one of the grounds for the

termination, loss, suspension or deprivation of parental authority provided in Article 332 of the same Code obtains in this case.

Art. 332 of the Civil Code provides, inter alia: "The courts may deprive the parents of their authority or suspend the exercise of the same if they should treat their children with excessive harshness or should give them corrupting orders, counsels, or examples, or should make them beg or abandon them." (emphasis supplied) Abandonment is therefore one of the grounds for depriving parents of parental authority over their children. Was the petitioner's acquiescence to the giving by Villareal of her child to the Cabangbangs tantamount to abandonment of the child? To our mind, mere acquiescence without more is not sufficient to constitute abandonment. But the record yields a host of circumstances which, in their totality, unmistakably betray the petitioner's settled purpose and intention to completely forego all parental responsibilities and forever relinquish all parental claim in respect to the child. She surrendered the custody of her child to the Cabangbangs in 1958. She waited until 1963, or after the lapse of a period of five long years, before she brought action to recover custody. Her claim that she did not take any step to recover her child because the Cabangbangs were powerful and influential, does not deserve any modicum of credence. A mother who really loves her child would go to any extent to be reunited with her. The natural and normal reaction of the petitioner once informed, as she alleged, that her child was in the custody of the Cabangbangs should have been to move heaven and earth, to use a worn-out but still respectable cliche, in order to recover her. Yet she lifted not a finger. It is a matter of record being the gist of her own unadulterated testimony under oath that she wants the child back so that Sy Sia Lay, the alleged father, would resume providing the petitioner the support which he peremptorily withheld and ceased to give when she gave the child away. A woman scorned, she desires to recover the child as a means of embarrassing Villareal who retrieved the jeep he gave her and altogether stopped living with and supporting her. But the record likewise reveals that at the pre-trial conducted by the court a quo, she expressed her willingness that the child remain with the Cabangbangs provided the latter would in exchange give her a jeep and some money. The petitioners's inconsistent demands in the course of the proceedings below, reveal that her motives do not flow from the wellsprings of a loving

Whether the petitioner can be legally separated from her child, Betty Chua Sy or Grace Cabangbang, is an issue that is now moot and academic. Having been born on December 15, 1957, the child is now 11 years of age. Consequently, the second paragraph of Art. 363 of the Civil Code, which prohibits the separation of a child under seven years of age from her mother, "unless the court finds compelling reasons for such measure," has no immediate relevance. The petitioner correctly argues, however, that the reasons relied upon by the lower court i.e., "petitioner is not exactly an upright woman" and "it will be for the welfare of the child" are not, strictly speaking, proper grounds in law to deprive a mother of her inherent right to parental authority over her child. It must be conceded that minor children be they legitimate, recognized natural, adopted, natural by legal fiction or illegitimate, other than natural as specified in Art. 269 of the Civil Code are by law under the parental authority of both the father and the mother, or either the father or the mother, as the case may be. But we take the view that on the basis of the aforecited seemingly unpersuasive factual premises, the petitioner can be deprived of her parental authority. For while in one breath Art. 313 of the Civil Code lays down the rule that "Parental authority cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession," it indicates in the next that "The courts may, in cases specified by law, deprive parents of their [parental] authority." And there are indeed valid reasons, as will presently be expounded, for depriving the petitioner of parental authority over the minor Betty Chua Sy or Grace Cabangbang. It is the lower court's finding that the child was given to the Cabangbangs by Villareal with the knowledge and consent of the petitioner. In support of this finding, it cited the facts that the petitioner did not at all not ever report to the authorities the alleged disappearance of her daughter, and had not been taken any step to see the child when she allegedly discovered that she was in the custody of the Cabangbangs. It discounted the petitioner's claim that she did not make any move to recover the child because the Cabangbangs are powerful and influential. The petitioner is bound by the foregoing findings of fact. Having taken her appeal directly to this Court, she is deemed to have waived the right to dispute any finding of fact made by the trial court. 2

mother's heart. Upon the contrary, they are unmistakably selfish nay, mercenary. She needs the child as a leverage to obtain concessions financial and otherwise either from the alleged father or the Cabangbangs. If she gets the child back, support for her would be forthcoming or so she thinks from the alleged father, Sy Sia Lay. On the other hand, if the Cabangbangs would keep the child, she would agree provided they gave her a jeep and some money. Indeed, the petitioner's attitude, to our mind, does nothing but confirm her intention to abandon the child from the very outset when she allowed Villareal to give her away to the Cabangbangs. It must be noted that the abandonment took place when the child, barely four months old, was at the most fragile stage of life and needed the utmost care and solicitude of her mother. And for five long years thereafter she did not once move to recover the child. She continuously shunned the natural and legal obligations which she owed to the child; completely withheld her presence, her love, her care, and the opportunity to display maternal affection; and totally denied her support and maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the child and her total relinquishment of parental claim over her, can and should be inferred as a matter of law. 3 Note that this was not the only instance when she gave away a child of her own flesh and blood. She gave up her youngest child, named Betty Tan Villareal, to her comadre in Cebu because she could not support it. Of incalculable significance is the fact that nowhere in the course of the petitioner's lengthy testimony did she ever express a genuine desire to recover her child Betty Chua Sy or Grace Cabangbang or, for that matter, her other child Betty Tan Villareal because she loves her, cares for her, and wants to smother her with motherly affection. Far from it. She wants Betty Chua Sy or Grace Cabangbang back so that the alleged father would resume giving her (the petitioner) support. She wants her back to humiliate and embarrass the respondent Villareal who, with her knowledge and consent, gave the child to the Cabangbangs. But "most unkindest cut of all!" she nevertheless signified her readiness to give up the child, in exchange for a jeep and some money. We therefore affirm the lower court's decision, not on the grounds cited by it, but upon a ground which the court overlooked i.e., abandonment by the petitioner of her child. 4 Contrast the petitioner's attitude with that of the respondents Cabangbang especially the respondent Flora Cabangbang who, from the moment the child

was given to them, took care of her as if she were her own flesh and blood, had her baptized, and when she reached school age enrolled her in a reputable exclusive school for girls. Ironically enough, the real heart-rending tragedy in this case would consist not in taking the child away from the Cabangbangs but in returning her to the custody of the petitioner. For, by her own admission, the petitioner has no regular source of income, and it is doubtful, to say the very least, that she can provide the child with the barest necessities of life, let alone send her to school. There is no assurance at all that the alleged father, Sy Sia Lay an unknown quantity, as far as the record goes would resume giving the petitioner support once she and the child are reunited. What would then prevent the petitioner from again doing that which she did before, i.e., give her away? These are of course conjectures, but when the welfare of a helpless child is at stake, it is the bounden duty of courts which they cannot shirk to respect, enforce, and give meaning and substance to a child's natural and legal right to live and grow in the proper physical, moral and intellectual environment. 5 This is not to say that with the Cabangbang spouses, a bright and secure future is guaranteed for her. For life is beset at every turn with snares and pitfalls. But the record indubitably pictures the Cabangbang spouses as a childless couple of consequence in the community, who have given her their name and are rearing her as their very own child, and with whom there is every reason to hope she will have a fair chance of normal growth and development into respectable womanhood. Verily, to surrender the girl to the petitioner would be to assume quite incorrectly that only mothers are capable of parental love and affection. Upon the contrary, this case precisely underscores the homiletic admonition that parental love is not universal and immutable like a law of natural science. II. The petitioner assails as illegal and without basis the award of the custody of Grace Cabangbang or Betty Chua Sy to the Cabangbang spouses upon the grounds, first, that the couple are not related by consanguinity, or affinity to the child, and second, because the answer of the spouses contains no prayer for the custody of the child.

The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from awarding her custody to them. Indeed, the law provides that in certain cases the custody of a child may be awarded even to strangers, as against either the father or the mother or against both. Thus, in proceedings involving a child whose parents are separated either legally or de facto and where it appears that both parents are improper persons to whom to entrust the care, custody and control of the child, "the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society." 6 Parenthetically, Sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's contention that the first sentence of Art. 363 of the Civil Code, which states that. "In all questions on the care, custody, education and property of children, the latter's welfare shall be paramount . . ." applies only when the litigation involving a child is between the father and the mother. That the policy enunciated in the abovequoted legal provision is of general application, is evident from the use of the adjective all meaning, the whole extent or quantity of, the entire number of, every of. 7 It is, therefore, error to argue that if the suit involving a child's custody is between a parent and a stranger, the law must necessarily award such custody to the parent. Sec. 7, Rule 99 of the Rules of Court, precisely contemplates, among others, a suit between a parent and a stranger who, in the words of the provision, is "some reputable resident of the province." And under the authority of the said rule, the court if it is for the best interest of the child may take the child away from its parents and commit it to, inter alia, a benevolent person. The petitioner's contention that the answer of the spouses Cabangbang contains no prayer for the retention by them of the custody of the child, is equally devoid of merit. The several moves taken by them are clear and definitive enough. First, they asked for her custody pendente lite. Second, they sought the dismissal of the petition below for lack of merit. Finally, they added a general prayer for other reliefs just and equitable in the premises. Surely the above reliefs prayed for are clearly indicative of the Cabangbangs' genuine desire to retain the custody of Betty Chua Sy or Grace Cabangbang. III.

Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." The petitioner has not proven that she is entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the contrary, by wantonly and completely shunting aside her legal and moral obligations toward her child, she must be deemed as having forfeited all legitimate legal and moral claim to her custody. The lower court acted correctly in dismissing her petition. ACCORDINGLY, the judgment a quo is affirmed. No pronouncement as to costs. Concepcion, C .J ., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano, Teehankee and Barredo, JJ ., concur.