GIL ATUN, ET AL.

, plaintiffs-appellants,
vs.
EUSEBIO NUEZ, ET AL., defendants-appellees.

Doroteo L. Serrano for appellants.
Alfredo S. Rebueno for appellees.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Albay dismissing the complaint for recovery of a
parcel of registered land upon a motion to dismiss filed by defendants after plaintiffs had closed their
evidence. The land in question is located in Legaspi City and registered in the name of Estefania Atun,
deceased aunt of plaintiffs, under Original Certificate of Title No. 11696 of the Registry of Property of
Albay. The complaint was filed on August 7, 1950.

The evidence for the plaintiffs-appellants shows that they inherited the land in question from their
widowed aunt Estefania Atun (sister of their deceased father Nicolas Atun), who died without any issue;
that they had possessed the land from 1927 to 1930, when plaintiff Gil Atun delivered the same to
Silvestra Nuez (sister of defendant-appellee Eusebio Nuez) for cultivation, for which Silvestra paid the
Atuns a part of the harvest as rental; that in 1940, Silvestra turned over the land to defendant Eusebio
Nuez, who thereafter refused to recognize plaintiffs' ownership or to deliver their share of the
produce; and that defendant Eusebio Nuez in turn sold the land to his co-defendant Diego Belga, who
took the property with the knowledge that it belonged, not to Nuez, but to plaintiffs.

Upon a demurrer to the evidence, filed by defendants after plaintiffs had rested their case, the lower
Court dismissed the complaint on the ground that the period of ten years within which plaintiffs could
have filed an action for recovery thereof under section 40 of Act 190 (computed from the time plaintiffs
lost possession of the land in 1940), had already elapsed, hence their action had prescribed; and that
furthermore, plaintiffs failed to prove their alleged ownership of the land in question, so that the
presumption that defendants, being possessors, are the lawful owners thereof, had not been overcome.
Plaintiffs' motion for reconsideration of the order of dismissal of the complaint having been denied, they
appealed to the Court of Appeals, which forwarded the case to us because the appeal raises question of
law.

The sole issue herein is whether the trial court erred in dismissing plaintiffs-appellants' complaint on the
ground of prescription of action.

The dismissal is erroneous. The land in question is admittedly covered by a Torrens title in the name of
Estefania Atun, deceased aunt of plaintiffs. Section 40 of Act 496 expressly provides that no title to
registered land in derogation to that of the registered owner shall be acquired by prescription or
adverse possession. And this Court has repeatedly held that the right of the registered owner to recover
possession of the registered property is equally imprescriptible, since possession is a mere consequence
of ownership. (Manlapas vs. Llorente, 48 Phil., 298, 308; Eugenio vs. Perdido, supra, p. 41; J. M. Tuason
& Co., Inc. vs. Bolaos, 95 Phil., 106.)

We are aware, of course, that title by adverse possession (acquisitive prescription) is distinct from the
statute of limitations (extinctive prescription) and the operation and effects of such distinction has been
explored during the discussions of this petition for review.

But we have finally agreed that, as to the lands registered under the Torrens system, ten years' adverse
possession may not be permitted to defeat the owners' right to possessionwhich is the necessary
incident of ownership. Otherwise loss of the land by prescription would be indirectly approved, in
violation of sec. 46 of the Land Registration Act. This statute, being a later enactment, may be said to
have partially amended the Statute of Limitations established in Act No. 190 in so far as the registered
lands are concerned. (Juan Eugenio, et al. vs. Silvina Perdido, et al., L-7083, May 19, 1955.)

And if prescription is unavailing against the registered owner, it must be equally unavailing against the
latter's hereditary successors, because they merely step into the shoes of the decedent by operation of
law (new Civil Code, Art. 777; Art. 657, old), the title or right undergoing no change by its transmission
mortis causa.

The lower Court also erred in ruling that plaintiffs-appellants have failed to show a better title than that
of defendants who are presumed to possess with just title. As the land in question still stands registered
in the name of Estefania Atun, now deceased, the present owners thereof would be her legal heirs. It is
of record that Estefania Atun died without any issue or ascendants and left as her only surviving heirs
the children of her brother Nicolas, plaintiffs herein; and the rule is settled that the legal heirs of a
deceased may file an action arising out of a right belonging to their ancestor, without a separate judicial
declaration of their status as such, provided there is no pending special proceeding for the settlement of
the decedent's estate (Mendoza Vda. de Bonnevie vs. Cecilia Vda. de Pardo, 59 Phil., 486; Gov't. of P.I.
vs. Serafica, 61 Phil., 93; Uy Coque vs. Sioca, 45 Phil., 430).

Pursuant to the rule that reversal on appeal of a ruling upholding a defendant's demurrer to the
evidence imports in civil cases loss of his right to submit evidence in his behalf, in order to discourage
prolonged litigations (Arroyo vs. Azur, 76 Phil., 493, and cases therein cited), judgment must be
rendered according to plaintiffs' evidence, which supports their claim of ownership of the land in
question, and for damages in the amount of P500 (t. s. n., p. 21).

Wherefore, the order appealed from is reversed; plaintiffs-appellants Gil Atun, Camila Atun, and
Dorotea Atun are declared the lawful owners in common of the lot in question; and defendants-
appellees Eusebio Nuez and Diego Belga are ordered to surrender possession thereof to the plaintiffs,
and to indemnify the latter in the amount of P500 by way of damages. Costs against defendants-
appellees in both instances. So ordered.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-44837 November 23, 1938

SOCORRO LEDESMA and ANA QUITCO LEDESMA, plaintiffs-appellees,
vs.
CONCHITA MCLACHLIN, ET AL., defendants-appellants.

Adriano T. de la Cruz for appellants.
Simeon Bitanga for appellees.



VILLA-REAL, J.:

This case is before us by virtue of an appeal taken by the defendants Conchita McLachlin, Lorenzo
Quitco, Jr., Sabina Quitco, Rafael Quitco and Marcela Quitco, from the decision of the Court of First
Instance of Occidental Negros, the dispositive part of which reads:

For the foregoing considerations, the court renders judgment in this case declaring Ana Quitco Ledesma
an acknowledged natural daughter of the deceased Lorenzo M. Quitco, for legal purposes, but absolving
the defendants as to the prayer in the first cause of action that the said Ana Quitco Ledesma be declared
entitled to share in the properties left by the deceased Eusebio Quitco.

As to the second cause of action, the said defendants are ordered to pay to the plaintiff Socorro
Ledesma, jointly and severally, only the sum of one thousand five hundred pesos(P1,500), with legal
interest thereon from the filing of this complaint until fully paid. No pronouncement is made as to the
costs. So ordered.

In support of their appeal, the appellants assign the following errors allegedly committed by the trial
court in its aforesaid decision:

1. That the trial court erred in holding, that the action for the recovery of the sum of P1,500,
representing the last installment of the note Exhibit C has not yet prescribed.

2. That the trial court erred in holding that the property inherited by the defendants from their
deceased grandfather by the right of representation is subject to the debts and obligations of their
deceased father who died without any property whatsoever.lawphi1.net

3. That the trial court erred in condemning the defendants to pay jointly and severally the plaintiff
Socorro Ledesma the sum of P1,500.

The only facts to be considered in the determination of the legal questions raised in this appeal are
those set out in the appealed decision, which have been established at the trial, namely:

In the year 1916, the plaintiff Socorro Ledesma lived maritally with Lorenzo M. Quitco, while the latter
was still single, of which relation, lasting until the year 1921, was born a daughter who is the other
plaintiff Ana Quitco Ledesma. In 1921, it seems hat the relation between Socorro Ledesma and Lorenzo
M. Quitco came to an end, but the latter executed a deed (Exhibit A), acknowledging the plaintiff Ana
Quitco Ledesma as his natural daughter and on January 21, 1922, he issued in favor of the plaintiff
Socorro Ledesma a promissory note (Exhibit C), of the following tenor:

P2,000. For value received I promise to pay Miss Socorro Ledesma the sum of two thousand pesos
(P2,000). Philippine currency under the following terms: Two hundred and fifty pesos (P250) to be paid
on the first day of March 1922; another two hundred and fifty pesos (P250)to be paid on the first day of
November 1922; the remaining one thousand and five hundred (P1,500) to be paid two years from the
date of the execution of this note. San Enrique, Occ. Negros, P. I., Jan. 21, 1922.

Subsequently, Lorenzo M. Quitco married the defendant Conchita McLachlin, with whom he had four
children, who are the other defendants. On March 9, 1930, Lorenzo M. Quitco died (Exhibit 5), and, still
later, that is, on December 15, 1932, his father Eusebio Quitco also died, and as the latter left real and
personal properties upon his death, administration proceedings of said properties were instituted in this
court, the said case being known as the "Intestate of the deceased Eusebio Quitco," civil case No. 6153
of this court.

Upon the institution of the intestate of the deceased Eusebio Quitco and the appointment of the
committee on claims and appraisal, the plaintiff Socorro Ledesma, on August 26, 1935, filed before said
committee the aforequoted promissory note for payment, and the commissioners, upon receipt of said
promissory note, instead of passing upon it, elevated the same to this court en consulta (Exhibit F), and
as the Honorable Jose Lopez Vito, presiding over the First Branch, returned said consulta and refrained
from giving his opinion thereon (Exhibit C), the aforesaid commissioners on claims and appraisal,
alleging lack of jurisdiction to pass upon the claim, denied he same (Exhibit H).

On November 14, 1933 (Exhibit I), the court issued an order of declaration of heirs in the intestate
of the deceased Eusebio Quitco, and as Ana Quitco Ledesma was not included among the declared heirs,
Socorro Ledesma, as mother of Ana Quitco Ledesma, asked for the reconsideration of said order, a
petition which the court denied. From the order denying the said petition no appeal was taken, and in
lieu thereof there was filed the complaint which gives rise to this case.

The first question to be decided in this appeal, raised in the first assignment of alleged error, is whether
or not the action to recover the sum of P1,500, representing the last installment for the payment of the
promissory note Exhibit C, has prescribed.

According to the promissory note Exhibit C, executed by the deceased Lorenzo M. Quitco, on January 21,
1922, the last installment of P1,500 should be paid two years from the date of the execution of said
promissory note, that is, on January 21, 1924. The complaint in the present case was filed on June 26,
1934, that is, more than ten years after he expiration of the said period. The fact that the plaintiff
Socorro Ledesma filed her claim, on August 26, 1933, with the committee on claims and appraisal
appointed in the intestate of Eusebio Quitco, does not suspend the running of the prescriptive period of
the judicial action for the recovery of said debt, because the claim for the unpaid balance of the amount
of the promissory note should no have been presented in the intestate of Eusebio Quitco, the said
deceased not being the one who executed the same, but in the intestate of Lorenzo M. Quitco, which
should have been instituted by the said Socorro Ledesma as provided in section 642 of the Code of Civil
Procedure, authorizing a creditor to institute said case through the appointment of an administrator for
the purpose of collecting his credit. More than ten years having thus elapsed from the expiration of the
period for the payment of said debt of P1,500, the action for its recovery has prescribed under section
43, No. 1, of the Code of Civil Procedure.

The first assignment of alleged error is, therefore, well-founded.

As to the second assignment of alleged error, consisting in that the trial court erred in holding that the
properties inherited by the defendants from their deceased grandfather by representation are subject
to the payment of debts and obligations of their deceased father, who died without leaving any
property, while it is true that under the provisions of articles 924 to 927 of the Civil Code, a children
presents his father or mother who died before him in the properties of his grandfather or grandmother,
this right of representation does not make the said child answerable for the obligations contracted by
his deceased father or mother, because, as may be seen from the provisions of the Code of Civil
Procedure referring to partition of inheritances, the inheritance is received with the benefit of
inventory, that is to say, the heirs only answer with the properties received from their predecessor. The
herein defendants, as heirs of Eusebio Quitco, in representation of their father Lorenzo M. Quitco, are
not bound to pay the indebtedness of their said father from whom they did not inherit anything.

The second assignment of alleged error is also well-founded.

Being a mere sequel of the first two assignments of alleged errors, the third assignment of error is also
well-founded.

For the foregoing considerations, we are of the opinion and so hold: (1) That the filing of a claim before
the committee on claims and appraisal, appointed in the intestate of the father, for a monetary
obligation contracted by a son who died before him, does not suspend the prescriptive period of the
judicial action for the recovery of said indebtedness; (2) that the claim for the payment of an
indebtedness contracted by a deceased person cannot be filed for its collection before the committee
on claims and appraisal, appointed in the intestate of his father, and the propertiesinherited from the
latter by the children of said deceased do not answer for the payment of the indebtedness contracted
during the lifetime of said person.

Wherefore, the appealed judgment is reversed, and the defendants are absolved from the complaint,
with the costs to the appellees. So ordered.






MARIA USON, plaintiff-appellee,
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND
FAUSTINO NEBREDA, Jr., defendants-appellants.

Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.

BAUTISTA ANGELO, J.:

This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the
Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her
four children named Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda, who are all of
minor age, before the Court of First Instance of Pangasinan.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved
in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff
claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took
possession illegally of said lands thus depriving her of their possession and enjoyment.

Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her
husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as
husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by
way of alimony and in return she renounced her right to inherit any other property that may be left by
her husband upon his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered decision
ordering the defendants to restore to the plaintiff the ownership and possession of the lands in dispute
without special pronouncement as to costs. Defendants interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former
owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria
del Rosario, one of the defendants-appellants, was merely a common-law wife of the late Faustino
Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise appears that
Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background,
it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the
time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil
Code).As this Court aptly said, "The property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered to them a deed for the same
before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of
inheritance of Maria Uson over the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question
because she expressly renounced to inherit any future property that her husband may acquire and leave
upon his death in the deed of separation they had entered into on February 21, 1931, cannot be
entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it
be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and
Ynchausti Steamship Co., 41 Phil., 531).

But defendants contend that, while it is true that the four minor defendants are illegitimate children of
the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights,
however, under the new Civil Code which became in force in June, 1950, they are given the status and
rights of natural children and are entitled to the successional rights which the law accords to the latter
(article 2264 and article 287, new Civil Code), and because these successional rights were declared for
the first time in the new code, they shall be given retroactive effect even though the event which gave
rise to them may have occurred under the prior legislation (Article 2253, new Civil Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are
declared for the first time shall have retroactive effect even though the event which gave rise to them
may have occurred under the former legislation, but this is so only when the new rights do not prejudice
any vested or acquired right of the same origin. Thus, said article provides that "if a right should be
declared for the first time in this Code, it shall be effective at once, even though the act or event which
gives rise thereto may have been done or may have occurred under the prior legislation, provided said
new right does not prejudice or impair any vested or acquired right, of the same origin." As already
stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question
became vested in 1945 upon the death of her late husband and this is so because of the imperative
provision of the law which commands that the rights to succession are transmitted from the moment of
death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the
illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested
right of Maria Uson over the lands in dispute.


As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity
or compassion, agreed to assign the lands in question to the minor children for the reason that they
were acquired while the deceased was living with their mother and Maria Uson wanted to assuage
somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is
disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real
property, inasmuch as it involves no material consideration, and in order that it may be valid it shall be
made in a public document and must be accepted either in the same document or in a separate one
(Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that
the alleged assignment or donation has no valid effect.

WHEREFORE, the decision appealed from is affirmed, without costs.



ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,
vs.
HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.

Lorenzo Somulong for petitioners.
Torres and Torres for respondents.

REYES, J.B.L., J.:

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ of
certiorari and prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion to
dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without
jurisdiction.

The facts and issues are succinctly narrated in the order of the respondent court, dated June 13, 1963
(Petition, Annex 0), in this wise:

It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez, through
counsel, that this Court "has no jurisdiction to try the above-entitled case in view of the pendency of
another action for the settlement of the estate of the deceased Rev. Fr. Celestino Rodriguez in the Court
of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'In the matter of the Intestate Estate
of the deceased Rev. Fr. Celestino Rodriguez which was filed ahead of the instant case".

The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila; that on
March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of Bulacan a
purported last will and testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and Angela
Rodriguez, through counsel filed a petition for leave of court to allow them to examine the alleged will;
that on March 11, 1963 before the Court could act on the petition, the same was withdrawn; that on
March 12, 1963, aforementioned petitioners filed before the Court of First Instance of Rizal a petition
for the settlement of the intestate estate of Fr. Rodriguez alleging, among other things, that Fr.
Rodriguez was a resident of Paraaque, Rizal, and died without leaving a will and praying that Maria
Rodriguez be appointed as Special Administratrix of the estate; and that on March 12, 1963 Apolonia
Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the will delivered by
them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez was born in Paraaque, Rizal;
that he was Parish priest of the Catholic Church of Hagonoy, Bulacan, from the year 1930 up to the time
of his death in 1963; that he was buried in Paraaque, and that he left real properties in Rizal, Cavite,
Quezon City and Bulacan.

The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was filed
at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of First Instance of
Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to entertain the petition for
probate, citing as authority in support thereof the case of Ongsingco Vda. de Borja vs. Tan and De Borja,
G.R. No. 7792, July 27, 1955.

The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of First Instance
of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk of Court on
March 4, 1963, and that the case in this Court therefore has precedence over the case filed in Rizal on
March 12, 1963.

The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a
difference of a few hours did not entitle one proceeding to preference over the other; that, as early as
March 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in
the Court of Bulacan, since they filed a petition to examine the same, and that movants clearly filed the
intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from
exercising jurisdiction over the probate proceedings". Reconsideration having been denied, movants,
now petitioners, came to this Court, relying principally on Rule 73, section 1 of the Rules of Court, and
invoking our ruling in Ongsingco vs. Tan and De Borja, L-7792, July 27, 1955.

SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in which he
resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance
of any province which he had estate. The court first taking cognizance of the settlement of the estate of
a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a
court, as far as it depends on the place of residence of the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case,
or when the want of jurisdiction appears on the record.

We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan became
vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963, even if no
petition for its allowance was filed until later, because upon the will being deposited the court could,
motu proprio, have taken steps to fix the time and place for proving the will, and issued the
corresponding notices conformably to what is prescribed by section 3, Rule 76, of the Revised Rules of
Court (Section 3, Rule 77, of the old Rules):

SEC. 3. Court to appoint time for proving will. Notice thereof to be published. When a will is delivered
to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such Court shall fix a
time and place for proving the will when all concerned may appear to contest the allowance thereof,
and shall cause notice of such time and place to be published three (3) weeks successively, previous to
the time appointed, in a newspaper of general circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by the
testator himself.

The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a
will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's
testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made
after the deposit of the will, the petition is deemed to relate back to the time when the will was
delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on
March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on
March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is
incontestable.1wph1.t

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "the
Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the decedent
was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of residence as parish
priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that he retained throughout
some animus revertendi to the place of his birth in Paraaque, Rizal, that detail would not imply that the
Bulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle decedents' estates
is conferred by law upon all courts of first instance, and the domicile of the testator only affects the
venue but not the jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484;
Bernabe vs. Vergara, 73 Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that
he left personal property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex
"H", Petition, Rec., p. 48). That is sufficient in the case before us.

In the Kaw Singco case (ante) this Court ruled that:

"... If we consider such question of residence as one affecting the jurisdiction of the trial court over the
subject-matter, the effect shall be that the whole proceedings including all decisions on the different
incidents which have arisen in court will have to be annulled and the same case will have to be
commenced anew before another court of the same rank in another province. That this is of
mischievous effect in the prompt administration of justice is too obvious to require comment. (Cf.
Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942). Furthermore, section 600 of Act
No. 190, providing that the estate of a deceased person shall be settled in the province where he had
last resided, could not have been intended as defining the jurisdiction of the probate court over the
subject matter, because such legal provision is contained in a law of procedure dealing merely with
procedural matters, and, as we have said time and again, procedure is one thing and jurisdiction over
the subject matter is another. (Attorney General vs. Manila Railroad Company, 20 Phil. 523.) The law of
jurisdiction Act No. 136, Section 56, No. 5 confers upon Courts of First Instance jurisdiction over all
probate cases independently of the place of residence of the deceased.1 Since, however, there are
many Courts of First Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the
venue or the place where each case shall be brought. Thus, the place of residence of the deceased is not
an element of jurisdiction over the subject matter but merely of venue. And it is upon this ground that in
the new Rules of Court the province where the estate of a deceased person shall be settled is properly
called "venue" (Rule 75, section 1.) Motion for reconsideration is denied.

The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any other,
that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of
wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the same enjoins
that:

The Court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction
to the exclusion of all other courts. (Sec. 1)

This disposition presupposes that two or more courts have been asked to take cognizance of the
settlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence to
that Court whose jurisdiction is first invoked, without taking venue into account.

There are two other reasons that militate against the success of petitioners. One is that their
commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to
the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of the
precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule 75)
was not designed to convert the settlement of decedent's estates into a race between applicants, with
the administration of the properties as the price for the fleetest.

The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinate
to the testate, since intestacy only takes place in the absence of a valid operative will. Says Article 960 of
the Civil Code of the Philippines:

ART. 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In
such case, legal succession shall take place only with respect to the property in which the testator has
not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if
the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right
of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the nullity of
testate succession could an intestate succession be instituted in the form of pre-established action". The
institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported
will of Father Rodriguez is pending.

We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate in
question, and that in refusing to dismiss the probate. proceedings, said court did not commit any abuse
of discretion. It is the proceedings in the Rizal Court that should be discontinued.

Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez.





RAQUEL CHAVEZ, GERARDO GIMENEZ and MANUELA BUENAVISTA VDA. DE CHAVEZ, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT (4th Civil Cases Division), ANTONIO CHAVEZ, ROSARIO CHAVEZ
and CONCEPCION CHAVEZ, respondents.

Edmundo A. Narra for petitioners.

Jose L. Lapak for respondents.



GRIO-AQUINO, J.:

This is a petition for review on certiorari of the decision dated March 26, 1984 of the Intermediate
Appellate Court in AC-G.R. No. CV-64708 which (1) annulled the sale made by Manuela Buenavista of
her property in favor of the spouses Raquel Chavez and Gerardo Gimenez (Exh. 2) and the subsequent
sale by said spouses of the same property to Pepito Ferrer, and (2) declared that the earlier deeds of
sale (Exhs. A, B, C and D) signed by Manuela and her children constituted a valid partition of the land,
subject to her lifetime usufruct. The Court of Appeals thereby reversed the decision dated December 21,
1971 of the Court of First Instance of Camarines Norte, Branch 1.

The land in question is the paraphernal property of petitioner Manuel Buenavista (defendant in Civil
Case No. 1934 of the Court of First Instance of Camarines Norte) who had six (6) children, named
Antonio, Rosario, Concepcion, Raquel, Presentacion and Floserpina. The first three were the plaintiffs
and the last three, with their mother, were the defendants in Civil Case No. 1934.

On July 11, 1958, Presentacion Chavez, with the conformity of her mother, Manuela Buenavista,
executed a deed of sale whereby she sold her 1/6 undivided share of the land in question to her sister,
Concepcion Chavez, for P 450.

Two years later, on May 2, 1960, Floserpina Chavez, with the conformity of her mother, also sold her 1/6
undivided share of the same land to her sister, Concepcion, for the same price of P450. On May 19,
1960, Raquel, with the conformity of her mother, likewise sold her undivided 1/6 share of the same
property to Concepcion Chavez for P600. Having acquired the shares of Presentacion, Floserpina and
Raquel, Concepcion thereby became the owner of a total undivided 4/6 share of the land in question
with Antonio and Rosario as owners of the remaining 2/6 shares.

In all the documents, the following stipulation appears:

Na ang nasabing lupa o pag-aari ay ipinamana na sa amin ng aming ina, ang nasabing Manuela
Buenavista, kung kaya ito ay hatiin naming anim (6) na mga magkakapatid, bagama't hindi pa namin
naisasagawa ang paghihiwatig o partition; ako bilang isa sa anim na magkakapatid ay may karapatan sa
isang ikaanim (1/6) na bahagi ng nasabing lupa, gayon pa man ang kasunduan sa nasabing pagkamana
namin ay samantalang nabubuhay pa ang aming ina, siya ang magkakandili at makikinabang sa nasabing
pag-aari. (p. 14, Rollo.)

meaning that the owner, Manuela Buenavista, had assigned or distributed to her children, in equal pro-
indiviso shares, her paraphernal property situated at Sitio Langas, Barrio Calangcawan Norte, Vinzons,
Camarines Norte, with an area of 4.1163 hectares more or less under Tax Declaration No. 9303 and
assessed at P1,630.00. The owner, however, reserved for herself the possession of the land and the
enjoyment of the fruits during her lifetime.

Despite the transfers or assignments her children had executed with her conformity ten years earlier,
Manuela Buenavista, on August 27, 1968, signed a "Bilihang Patuluyan ng Lupa" of the entire property in
favor of her daughter, Raquel Chavez, and her husband, Gerardo Jimenez. On October 7, 1968, Antonio,
Rosario and Concepcion filed Civil Case No. 1934 against their mother Manuela and their sister Raquel.
Thereupon, Manuela sold the entire property to Pepito Ferrer, on February 4, 1969 (Exh. F) with right to
repurchase. Ferrer was later sued as an additional defendant in Civil Case No. 1934.

After the trial, judgment was rendered by the trial court dismissing the complaint, dissolving the
preliminary injunction it had previously issued, and ordering the plaintiffs to pay the costs. The court did
not award damages.

The plaintiffs, Antonio, Rosario and Concepcion, appealed to the Court of Appeals (CA-G.R. No. 64708-
R).

On March 26, 1984, the Court of Appeals reversed the trial court. The dispositive portion of its decision
reads:

WHEREFORE, we reverse and set aside the appealed decision and render another one declaring the
deeds of sale in favor of Raquel Chavez and Gerardo Jimenez (Exh. 2) and the sale in favor of defendant-
appellee Pepito Ferrer as null and void ab initio, and declaring further that the documents (Exhs. A, B, C
and D) are evidence of a valid partition of the land in question by and between Manuela Buenavista and
her children, subject to her right of usufruct during her lifetime, without pronouncement as to damages
and costs. (p. 17, Rollo.)

On April 5, 1984, the petitioners filed a motion for reconsideration alleging among others:

3. That the late Manuela Buenavista Vda. de Chavez, one of the defendants-appellees, was found
lately to have executed during her lifetime a LAST WILL AND TESTAMENT ... and there is now a pending
petition for probate of said last will and testament before the Municipal Trial Court of Vinzons,
Camarines Norte;

xxx xxx xxx

6. In the case at bar, even granting that the late Manuela Buenavista's execution of the documents
referred to as Exhibits A, B, C and D are valid, nevertheless its validity ceases from the time that she
executed the Last Will and Testament . . . because the execution of the Last Will invalidates the former
act of the said Manuela Buenavista;

7. That the Last will and Testament . . . which his now pending probate in the Municipal Trial Court
of Vinzons, Camarines Norte, will finally affect the property hence, there is a ground for this motion
for reconsideration and/or to suspend the decision-pending final outcome of the probate of the last will
and testament of the late Manuela Buenavista. (pp. 88-89, Rollo.)

Private respondents opposed the Motion for Reconsideration asserting that the partition inter vivos
which had been implemented long before the execution of the said Last Will and Testament could not
be revoked by the later instrument; that the supposed Last Will and Testament was executed on
December 11, 1969, more than one year after the filing of the complaint for annulment on October 9,
1968, when said Manuela Buenavista was already senile and not of disposing mind; that while Manuela
Buenavista was able to sign with her own hand the several Deeds of Sale, the supposed Last Will and
Testament bears her thumbmark only; that Manuela Buenavista had no more property to dispose of by
will on December 11, 1969, when she supposedly executed her Last Will and Testament.

On June 28, 1984, the Appellate Court denied the Motion for Reconsideration.

In their petition for review of the decision of the Court of Appeals, the petitioners allege:

(l) That the Intermediate Appellate Court (now Court of Appeals) erred in declaring valid the deeds
of sale (Exhs. A, B, C and D) as a partition by an act inter vivos considering that examining the said
exhibits will reveal that it is not a testament amounting to a will of Manuela Buenavista;

(2) That the Intermediate Appellate Court erred in ruling against Article 1347 of the New Civil Code.
(p. 126, Rollo.)

We find those contentions not well-taken.

Article 1080 of the New Civil Code allows a person to make a partition of his estate either by an act inter
vivos or by will and such partition shall be respected insofar as it does not prejudice the legitimate of the
compulsory heirs. While the law prohibits contracts upon future inheritance, the partition by the parent,
as provided in Art. 1080, is a case expressly authorized by law (Art. 1347, par. 2, Civil Code of the Phil. by
Padilla, 1987 Edition, p. 744.) Art. 1080 of the Civil Code clearly gives a person two options in making a
partition of his estate; either by an act inter vivos or by WILL. When a person makes a partition by will, it
is imperative that such partition must be executed in accordance with the provisions of the law on wills;
however, when a person makes the partition of his estate by an act inter vivos, such partition may even
be oral or written, and need not be in the form of a will, provided that the partition does not prejudice
the legitime of compulsory heirs.

In numerous cases it has been held or stated that parol partitions may be sustained on the ground of
estoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol
partition as to which possession in severalty was taken and acts of individual ownership were exercised.
And a court of equity will recognize the agreement and decree it to be valid and effectual for the
purpose of concluding the right of the parties as between each other to hold their respective parts in
severalty.

A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and
ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto,
or otherwise recognizing the existence of the partition. (Hernandez vs. Andal, et al., 78 Phil. 196, 203.)

In the instant case, the respondent appellate court declared the Deeds of Sale executed by
Presentacion, Floserfina and Raquel, all surnamed Chavez (Exhs. A, B, and C) in favor of Concepcion
Chavez as evidence of a valid partition of the land in question by and between Manuela Buenavista and
her children as she not only gave her authority thereto but also signed the sales. The Deeds of Sale
(Exhs. A, B, and C) are not contracts entered into with respect to feature inheritance but a contract
perfected and consummated during the lifetime of Manuela Buenavista who signed the same and gave
her consent thereto. Such partition inter vivos, executed by the property owner herself, is valid.

.... As the defendants freely participated in the partition, they are now estopped from denying and
repudiating the consequences of their own voluntary acts. It is a general principle of law that no one
may be permitted to disavow and go back upon his own acts, or to proceed contrary thereto. (Joaquin
vs. Mitsumine 34 Phil. 858.)

Where a piece of land has been included in a partition, and there is no allegation that the inclusion was
effected through improper means or without the petitioner's knowledge, the partition barred any
further litigation on said title and operated to bring the property under the control and jurisdiction of
the court for proper disposition according to the tenor of the partition... They cannot attack the
partition collaterally ... (Ralla vs. Judge Untalan, 172 SCRA 858, 865, citing the case of Torres vs.
Encarnacion and De Borja, No. L-4681, July 31, 1951, 89 Phil. 678.)

As well argued by counsel for the respondents in their memorandum, it would be unjust and inequitable
to allow Manuela Buenavista Vda. de Chavez to revoke the sales she herself authorized as well as the
sale she herself executed in favor of her son only to execute a simulated sale in favor of her daughter
Raquel who had already profited from the sale she made of the property she had received in the
partition inter vivos; it would run counter to the doctrine that "no person should be allowed to unjustly
enrich herself at the expense of another."

WHEREFORE, finding no reversible error in the decision of the Court of Appeals in AC-G.R. No. CV-64708,
the same is affirmed in toto. The petition for review is dismissed for lack of merit, with costs against the
petitioners.

SO ORDERED.

In re estate of JOSE YAP SIONG, deceased.
MARIA LAO and JOSE LAO, petitioners-appellees,
vs.
DEE TIM, YAP KIM TING, YAP KIM SENG, and YAP HU CHO, respondents-appellants.

Salvador Barrios and Gabino S. Abaya for appellants.
Felix B. Bautista and Jose Gutierrez David for appellees.

JOHNSON, J.:

It appears from the record that on the 5th day of September, 1922, Yap Siong died in the municipality of
Angeles, Province of Pampanga, Philippine Islands, leaving a considerable amount of property to be
distributed among his heirs. An administrator was appointed to administer his estate. During the course
of the administration and distribution of the estate there appeared the petitioners and the respondents,
each claiming to be the legitimate heirs of Yap Siong and entitled to his estate. The petitioner Maria Lao
claims to be the legitimate widow of Yap Siong, having been legally joined to him in holy wedlock on the
24th day of June, 1903, in the Philippine Islands (Exhibit 1) and that Jose Lao is a legitimate child born of
that marriage, and that they are therefore entitled, as heirs, to the estate of Yap Siong, deceased.

Upon the other hand Dee Tim claims to be the legitimate widow of Yap Siong; that she and Yap Siong
were joined in the holy wedlock on the 14th day of September, 1893, in accordance with the laws of
China (Exhibits A and A-1), and that the said Yap Kim Ting, Yap Kim Seng, and Yap Hu Cho were her
legitimate children born of that wedlock.

In support of the contention of the petitioners, Maria Lao and her son Jose Lao, a great deal of proof
was presented. Exhibits 1 and 1-A, certificates of marriage, were presented to show that she had been
legally married to Yap Siong. A number of other documents (Exhibits 9 to 13) were presented to show
that Yap Siong had admitted that he was a married man. Exhibits 14 to 17 were presented for the
purpose of proving that Yap Siong had admitted in a public document that Maria Lao was his wife.

The respondent Dee Tim presented a great deal of proof to show that she was the legitimate wife of Yap
Siong, lawfully joined to him in holy wedlock in China on the 14th day of September, 1893. To support
that contention she presented what she contended was a certificate of marriage, marked Exhibit A
Exhibit A-1. She contended that Exhibit A was positive proof of her marriage and that it complied with
the custom and practice in China with reference to marriage ceremonies. To support her contention she
presented a number of witnesses. Jan Peng, a Chinaman of 52 years of age, swore that he knew the
forms of ceremonies of marriage in China, and that Exhibit A was the ordinary and customary document
issued to prove that the ceremony of marriage had taken place. He described in detail the ceremony of
marriage performed in accordance with the customs and practice in China.

Dee Tim also presented a witness, Ty Cong Ting, a Chinaman, 32 years of age and a lawyer, who testified
concerning the laws and customs in China with reference to the forms of marriage ceremony. He
testified that he knew and was well acquainted with the customs and practices of Chinamen in China
with reference to marriages and the manner and form in which they were celebrated, and the form of
proof issued for the purpose of proving that a marriage ceremony had been performed. He further
testified that Exhibit A was the usual proof or certificate issued for the purpose of proving that a
marriage ceremony had taken place. He further testified that Exhibit A was the usual and ordinary proof,
or certificate, if it may be called a certificate, issued to show that a marriage ceremony had been
performed between the persons mentioned therein. Mr. Ty Cong Ting was, at the time he declared as a
witness, the legal attorney of the Chinese Consul General in the City of Manila.

The respondent Dee Tim presented several witnesses who confirmed her contention that she was the
legitimate wife of Yap Siong and that her three children Yap Kim Ting, Yap Kim Seng, and Yap Hu Cho
were her legitimate children, born of her marriage with Yap Siong. To further sustain her contention she
presented Exhibits B, C, D, E, F, G, H, I, and J, documents in which Yap Siong had expressly recognized his
marriage to her.

To overcome the proof adduced by Dee Tim in support of her marriage to Yap Siong, the petitioner
presented Exhibits 2,3,4,5,6,7, and 8. Said exhibits are alleged letters supposed to have been written by
an uncle in China of Yap Siong during the years 1900 to 1906, urging him to return to China for the
purpose of marrying, thus attempting to establish the fact that Yap Siong during that period was not a
married man. When we first studied the record in this case we were inclined to give said letters great
credit, but upon a further examination of the record and a further argument by the respective parties,
we are now inclined to believe that said letters were fabricated for the very purpose of defeating the
contention of Dee Tim. They were not identified properly by persons who had reason to know that they
were genuine in character and were actually prepared in China and sent to Yap Siong in the Philippine
Islands. We are of the opinion, and we believe that was the real opinion of the trial court, that said
exhibits should not be admitted as proof to sustain the fact for which they were presented. We are now
persuaded that said letters are pure fabrications.

The petitioner further presents two or three witnesses for the purpose of showing that the marriage
between Dee Tim and Yap Siong never took place for the reason that Yap Siong was in the Philippine
Islands on the 14th day of September, 1893, and that at that time he was living in the municipality of
Bacolor, of the Province of Pampanga, and that he never left that municipality. A careful reading of their
testimony, however, does not convince us that it is altogether reliable. The testimony which they gave
was given in the month of January, 1923, and they testified positively as to exact dates, times, and
places in the year 1897. Their testimony contains no facts, or data, or peculiar circumstances or
conditions which caused them to remember the particular facts concerning which they testified. They
gave no reason why they were able to remember the exact whereabouts of Yap Siong during the period
to which their testimony referred. Upon the contrary there is much proof in the record that Yap Siong
returned to China a number of times after his first arrival here. The petitioner further presents some
proof to show that Yap Siong had admitted on several occasions that Dee Tim was his querida and not
his wife.

The respondents further attempted to show that Maria Lao and Jose Lao, her son, were not the
legitimate wife and son of Yap Siong, by presenting Exhibits L and LL. Exhibit L is the baptismal certificate
issued by the parish priest of the municipality of Angeles, in which it is made to appear that on the 5th
day of January, 1904, he baptized a child named Jose Martin, a natural son of Maria Lao, and whose
father was unknown. Exhibit LL is a certificate of birth issued by the secretary of the municipality of
Angeles, in which it appears that Jose Martin Lao, a child, was born on the first day of January, 1904, a
natural son of Maria Lao. There is nothing, however, in Exhibits L or LL, which shows that Maria Lao was
responsible for the facts which they contain. Exhibit LL contains the statement that the facts therein
were not obtained from Maria Lao but from one Isabelo Lao.

There is a notable conflict between Exhibits L and LL. Exhibit LL certifies that Jose Martin Lao was born
on the first day of January, 1904, while Exhibit L certifies that the baptism took place on the 5th day of
January, 1904, and that the child was then 34 days old. It is apparent therefore that the facts stated in
one or the other of said exhibits are untrue. And, moreover, when we consider the customs of the
Filipino people in their relation with the Holy Roman Catholic Apostolic Church, it is easily understood, in
view of the alleged fact that Maria Lao and Yap Siong had been joined in holy matrimony under the
forms of the Protestant Church, why the parish priest of the municipality of Angeles stated in his
certificate that the father of the child, then Jose Martin, was unknown.

The respondents further attempted to show that Yap Siong and Maria Lao had never been joined legally
in holy wedlock, by the testimony of a number of witnesses to the fact that Yap Siong had on numerous
occassions asserted that Maria Lao was his querida only. It is perhaps true that Yap Siong did on various
occasions, depending upon his interest and convenience at the particular time, state that Maria Lao was
his querida and not his wife. It is also perhaps true, for the same reason, that he stated that Dee Tim was
not his wife but his querida. Evidently he was attempting to keep the information, that he was quite able
to do, until he had passed to that bourn from which none returns, and until a distribution of his large
accumulated earnings among his heirs became necessary.

From all of the foregoing conflicting facts, and considering all of the facts of the record, we are forced to
the conclusion that a preponderance of the evidence shows the following:

(1) That Dee Tim and Yap Siong were legally married in China in accordance with the laws and customs
in China on the 14th day of September, 1893; that Yap Kim Ting, Yap Kim Seng, and Yap Hu Cho were the
legitimate children born of that wedlock; that Dee Tim and her said children were ignorant of the fact
that Yap Siong had legally married Maria Lao, and that Jose Lao was born of that wedlock; and that they
had no reason to believe, until after the death of Yap Siong, that he was legally married to the petitioner
herein.

(2) That Maria Lao was legally married to Yap Siong on the 24th day of June, 1903, in good faith
believing that Yap Siong was not then a married man, without any knowledge or information or
suspicion to the contrary; and that Jose Lao is the legitimate child born of that marriage of Yap Siong and
Maria Lao.

In other words, we are fully convinced that a preponderance of the evidence shows that both Dee Tim
and Maria Lao were legally married to Yap Siong in good faith, believing that each was his sole and
separate wife, living in absolute ignorance of the fact of his double marriage. They were each married in
good faith and in ignorance of the existence of the other marriage. Yap Siong up to the time of his death
seems to have been successful in keeping each of his two wives ignorant of the fact that he was married
to the other.

Under the foregoing facts, how must the property of Yap Siong be divided between the two families?
Under the Leyes de Partidas (Law 1, title 13, partida 4), where two women innocently and in good faith
are legally united in holy matrimony to the same man, their children born will be regarded as legitimate
children and each family will be entitled to one-half of the estate of the husband upon distribution of his
estate. That provision of the Leyes de Partidas is a very humane and wise law. It justly protects those
who innocently have entered into the solemn relation of marriage and their descendants. The good faith
of all the parties will be presumed until the contrary is positively proved. (Article 69, Civil Code; Las
Leyes de Matrimonio, section 96; Gaines vs. Hennen, 65 U.S., 553.)

A woman who is deceived by a man who represents himself as single and who marries him, she and her
children born while the deception lasted, under the Spanish Law, are entitled to all the rights of a
legitimate wife and children. The common law allowing none of the incidents of a true marriage to
follow another marriage entered into during the continuance of a first, was early found to work a great
injustice upon the innocent parties to the second marriage, and specially upon the offspring of such
second marriage. To remedy that hardship under the common law and following the wise jurisprudence
of Spain, both England and many of the states of the United States adopted statutes. (Glass vs. Glass,
114 Mass., 563; Spicer vs. Spicer, 16 Abbot's Practice [N. S.], 114; Dyer vs. Brannock, 66 Mo., 391;
Graham vs. Bennet, 2 Cal., 503; Smith vs. Smith, 1 Tex., 621 [46 Am. Dec., 121]; Clendenning vs.
Clendenning, 7 Martin [La.], 587; Patton vs. Cities of Philadelphia and New Orleans, 1 La. Ann., 98;
Abston vs. Abston, 15 La. Ann., 137; Gaines vs. Hennen, 65 U.S., 553; Ex parte Myra Clarke Whitney, 38
U.S., 404; Estate of Navarro, 24 La. Ann., 298; In re Taylor, 39 La. Ann., 823.)

The foregoing conclusions in no way conflict with the decision of this court in the case of Sy Joc Lieng vs.
Encarnacion (16 Phil., 137) nor with the decision of Adong vs. Cheong Seng Gee (43 Phil., 43), for the
reason that in each of said cases a preponderance of the evidence showed that no legal marriage had
been performed in China, that is, that the alleged Chines wife and the deceased in each of those cases
had never been legally married.

Therefore the conclusion reached in the decision heretofore announced by this court in the present case
is hereby set aside and it is hereby ordered and decreed that the judgment of the lower court be
revoked and that the estate of Yap Siong be divided equally, one-half going to Maria Lao and her son,
Jose Lao, and the other one-half to Dee Tim and her three children. And without any finding as to costs,
it so ordered.




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

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

BENGZON, J.P., J.:

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
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 Carillo (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 intes-state succession from Honoria Salak and Isabel Carrillo, including 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 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 a 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 administratix 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 three-fourths 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 Appeals,
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 Carrillo, 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 of
No. 221 against Francisca Salak de Paz and Ernesto Bautista.2

On June 20, 1963, defendants Francisco Salak de Paz and Ernesto Bautita filed a motion to dismiss upon
the grounds that the cause of action is barred by prior judgement 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 Carrillo 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 Carrillo (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 v. 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 states:

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 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 por 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 dominio 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 tiene el caracter de personalisimo 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, salvo cases de renuncia, incapacidad o
prescripcion.

xxx xxx xxx

C) Extincion de la reserva.Las mismas condiciones exigidas para el nacimiento de la reserva son
necesarias para su existencia. Al faltar una de ellas, la reserva muerte. Tres son, por tanto, las principales
causas de extincion:

1.a. Muerte 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
necida a compaa al ascendiente obligado a ella hasta su muerte. Muerto el ascendiente, cesa toda
obligacion de reservar; falta el sujeto pasivo de 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) Prescipcion.Este modo extintivo de los derechos tiene solo applicacion 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.

Tocante a los parientes con derecho a la reserva, es aplicable la doctrina, porque pueden no ejercer su
derecho por ignorar la muerte del descendiente opor otra causa.

Dada esta posibilidad, entendemos que, tratandose de un derecho real sobre bienes inmuebles,
prescribira a los treinta aos (art. 1.693) (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 de la reserva, se extenguira esta, y el ascendiente o sus derecho-habientes adquiriran el
pleno dominio de los bienes reservables 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 ten (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.




EN BANC

[G.R. No. L-8437. November 28, 1956.]

ESTATE OF K. H. HEMADY, deceased, vs. LUZON SURETY CO., INC., claimant-Appellant.



D E C I S I O N

REYES, J. B. L., J.:

Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal, presided by Judge
Hermogenes Caluag, dismissing its claim against the Estate of K. H. Hemady (Special Proceeding No. Q-
293) for failure to state a cause of action.

The Luzon Surety Co. had filed a claim against the Estate based on twenty different indemnity
agreements, or counter bonds, each subscribed by a distinct principal and by the deceased K. H.
Hemady, a surety solidary guarantor) in all of them, in consideration of the Luzon Surety Co.s of having
guaranteed, the various principals in favor of different creditors. The twenty counterbonds, or indemnity
agreements, all contained the following stipulations:chanroblesvirtuallawlibrary

Premiums. As consideration for this suretyship, the undersigned jointly and severally, agree to pay
the COMPANY the sum of ________________ (P______) pesos, Philippines Currency, in advance as
premium there of for every __________ months or fractions thereof, this ________ or any renewal or
substitution thereof is in effect.

Indemnity. The undersigned, jointly and severally, agree at all times to indemnify the COMPANY and
keep it indemnified and hold and save it harmless from and against any and all damages, losses, costs,
stamps, taxes, penalties, charges, and expenses of whatsoever kind and nature which the COMPANY
shall or may, at any time sustain or incur in consequence of having become surety upon this bond or any
extension, renewal, substitution or alteration thereof made at the instance of the undersigned or any of
them or any order executed on behalf of the undersigned or any of them; chan
roblesvirtualawlibraryand to pay, reimburse and make good to the COMPANY, its successors and
assigns, all sums and amount of money which it or its representatives shall pay or cause to be paid, or
become liable to pay, on account of the undersigned or any of them, of whatsoever kind and nature,
including 15% of the amount involved in the litigation or other matters growing out of or connected
therewith for counsel or attorneys fees, but in no case less than P25. It is hereby further agreed that in
case of extension or renewal of this ________ we equally bind ourselves for the payment thereof under
the same terms and conditions as above mentioned without the necessity of executing another
indemnity agreement for the purpose and that we hereby equally waive our right to be notified of any
renewal or extension of this ________ which may be granted under this indemnity agreement.

Interest on amount paid by the Company. Any and all sums of money so paid by the company shall
bear interest at the rate of 12% per annum which interest, if not paid, will be accummulated and added
to the capital quarterly order to earn the same interests as the capital and the total sum thereof, the
capital and interest, shall be paid to the COMPANY as soon as the COMPANY shall have become liable
therefore, whether it shall have paid out such sums of money or any part thereof or not.

x x x x x x x x x

Waiver. It is hereby agreed upon by and between the undersigned that any question which may arise
between them by reason of this document and which has to be submitted for decision to Courts of
Justice shall be brought before the Court of competent jurisdiction in the City of Manila, waiving for this
purpose any other venue. Our right to be notified of the acceptance and approval of this indemnity
agreement is hereby likewise waived.

x x x x x x x x x

Our Liability Hereunder. It shall not be necessary for the COMPANY to bring suit against the principal
upon his default, or to exhaust the property of the principal, but the liability hereunder of the
undersigned indemnitor shall be jointly and severally, a primary one, the same as that of the principal,
and shall be exigible immediately upon the occurrence of such default. (Rec. App. pp. 98- 102.)

The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the twenty bonds it
had executed in consideration of the counterbonds, and further asked for judgment for the unpaid
premiums and documentary stamps affixed to the bonds, with 12 per cent interest thereon.

Before answer was filed, and upon motion of the administratrix of Hemadys estate, the lower court, by
order of September 23, 1953, dismissed the claims of Luzon Surety Co., on two
grounds:chanroblesvirtuallawlibrary (1) that the premiums due and cost of documentary stamps were
not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor
(Hemady), since they were not liabilities incurred after the execution of the counterbonds; chan
roblesvirtualawlibraryand (2) that whatever losses may occur after Hemadys death, are not chargeable
to his estate, because upon his death he ceased to be guarantor.

Taking up the latter point first, since it is the one more far reaching in effects, the reasoning of the court
below ran as follows:chanroblesvirtuallawlibrary

The administratrix further contends that upon the death of Hemady, his liability as a guarantor
terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim
cannot be considered contingent. This Court believes that there is merit in this contention and finds
support in Article 2046 of the new Civil Code. It should be noted that a new requirement has been
added for a person to qualify as a guarantor, that is:chanroblesvirtuallawlibrary integrity. As correctly
pointed out by the Administratrix, integrity is something purely personal and is not transmissible. Upon
the death of Hemady, his integrity was not transmitted to his estate or successors. Whatever loss
therefore, may occur after Hemadys death, are not chargeable to his estate because upon his death he
ceased to be a guarantor.

Another clear and strong indication that the surety company has exclusively relied on the personality,
character, honesty and integrity of the now deceased K. H. Hemady, was the fact that in the printed
form of the indemnity agreement there is a paragraph entitled Security by way of first mortgage, which
was expressly waived and renounced by the security company. The security company has not demanded
from K. H. Hemady to comply with this requirement of giving security by way of first mortgage. In the
supporting papers of the claim presented by Luzon Surety Company, no real property was mentioned in
the list of properties mortgaged which appears at the back of the indemnity agreement. (Rec. App., pp.
407-408).

We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under the Civil
Code of 1889 (Article 1257), the rule is that

Contracts take effect only as between the parties, their assigns and heirs, except in the case where the
rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or
by provision of law.

While in our successional system the responsibility of the heirs for the debts of their decedent cannot
exceed the value of the inheritance they receive from him, the principle remains intact that these heirs
succeed not only to the rights of the deceased but also to his obligations. Articles 774 and 776 of the
New Civil Code (and Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming
Article 1311 already quoted.

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

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

In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:chanroblesvirtuallawlibrary

Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and
obligations of the deceased (Article 661) and cannot be regarded as third parties with respect to a
contract to which the deceased was a party, touching the estate of the deceased (Barrios vs. Dolor, 2
Phil. 44).

x x x x x x x x x

The principle on which these decisions rest is not affected by the provisions of the new Code of Civil
Procedure, and, in accordance with that principle, the heirs of a deceased person cannot be held to be
third persons in relation to any contracts touching the real estate of their decedent which comes in to
their hands by right of inheritance; chan roblesvirtualawlibrarythey take such property subject to all the
obligations resting thereon in the hands of him from whom they derive their rights.

(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs. Salak, 91 Phil., 265).

The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in
our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before
the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made
from the estate is ultimately a payment by the heirs and distributees, since the amount of the paid claim
in fact diminishes or reduces the shares that the heirs would have been entitled to receive.

Under our law, therefore, the general rule is that a partys contractual rights and obligations are
transmissible to the successors. The rule is a consequence of the progressive depersonalization of
patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of
these institutions. From the Roman concept of a relation from person to person, the obligation has
evolved into a relation from patrimony to patrimony, with the persons occupying only a representative
position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu
personae, in consideration of its performance by a specific person and by no other. The transition is
marked by the disappearance of the imprisonment for debt.

Of the three exceptions fixed by Article 1311, the nature of the obligation of the surety or guarantor
does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal
inducement for the contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady when it
accepted the latter as surety in the counterbonds? Nothing but the reimbursement of the moneys that
the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This
reimbursement is a payment of a sum of money, resulting from an obligation to give; chan
roblesvirtualawlibraryand to the Luzon Surety Co., it was indifferent that the reimbursement should be
made by Hemady himself or by some one else in his behalf, so long as the money was paid to it.

The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the parties. Being
exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but
must be expressly established, or at the very least, clearly inferable from the provisions of the contract
itself, and the text of the agreements sued upon nowhere indicate that they are non-transferable.

(b) Intransmisibilidad por pacto. Lo general es la transmisibilidad de darechos y obligaciones; chan
roblesvirtualawlibraryle excepcion, la intransmisibilidad. Mientras nada se diga en contrario impera el
principio de la transmision, como elemento natural a toda relacion juridica, salvo las personalisimas. Asi,
para la no transmision, es menester el pacto expreso, porque si no, lo convenido entre partes trasciende
a sus herederos.

Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen los efectos de los
vinculos juridicos creados por sus antecesores, y para evitarlo, si asi se quiere, es indespensable
convension terminante en tal sentido.

Por su esencia, el derecho y la obligacion tienden a ir ms all de las personas que les dieron vida, y a
ejercer presion sobre los sucesores de esa persona; chan roblesvirtualawlibrarycuando no se quiera
esto, se impone una estipulacion limitativa expresamente de la transmisibilidad o de cuyos tirminos
claramente se deduzca la concresion del concreto a las mismas personas que lo otorgon. (Scaevola,
Codigo Civil, Tomo XX, p. 541-542) (Emphasis supplied.)

Because under the law (Article 1311), a person who enters into a contract is deemed to have contracted
for himself and his heirs and assigns, it is unnecessary for him to expressly stipulate to that effect; chan
roblesvirtualawlibraryhence, his failure to do so is no sign that he intended his bargain to terminate
upon his death. Similarly, that the Luzon Surety Co., did not require bondsman Hemady to execute a
mortgage indicates nothing more than the companys faith and confidence in the financial stability of
the surety, but not that his obligation was strictly personal.

The third exception to the transmissibility of obligations under Article 1311 exists when they are not
transmissible by operation of law. The provision makes reference to those cases where the law
expresses that the rights or obligations are extinguished by death, as is the case in legal support (Article
300), parental authority (Article 327), usufruct (Article 603), contracts for a piece of work (Article 1726),
partnership (Article 1830 and agency (Article 1919). By contract, the articles of the Civil Code that
regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is
extinguished upon the death of the guarantor or the surety.

The lower court sought to infer such a limitation from Art. 2056, to the effect that one who is obliged
to furnish a guarantor must present a person who possesses integrity, capacity to bind himself, and
sufficient property to answer for the obligation which he guarantees. It will be noted, however, that
the law requires these qualities to be present only at the time of the perfection of the contract of
guaranty. It is self-evident that once the contract has become perfected and binding, the supervening
incapacity of the guarantor would not operate to exonerate him of the eventual liability he has
contracted; chan roblesvirtualawlibraryand if that be true of his capacity to bind himself, it should also
be true of his integrity, which is a quality mentioned in the article alongside the capacity.

The foregoing concept is confirmed by the next Article 2057, that runs as
follows:chanroblesvirtuallawlibrary

ART. 2057. If the guarantor should be convicted in first instance of a crime involving dishonesty or
should become insolvent, the creditor may demand another who has all the qualifications required in
the preceding article. The case is excepted where the creditor has required and stipulated that a
specified person should be guarantor.

From this article it should be immediately apparent that the supervening dishonesty of the guarantor
(that is to say, the disappearance of his integrity after he has become bound) does not terminate the
contract but merely entitles the creditor to demand a replacement of the guarantor. But the step
remains optional in the creditor:chanroblesvirtuallawlibrary it is his right, not his duty; chan
roblesvirtualawlibraryhe may waive it if he chooses, and hold the guarantor to his bargain. Hence Article
2057 of the present Civil Code is incompatible with the trial courts stand that the requirement of
integrity in the guarantor or surety makes the latters undertaking strictly personal, so linked to his
individuality that the guaranty automatically terminates upon his death.

The contracts of suretyship entered into by K. H. Hemady in favor of Luzon Surety Co. not being
rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts
themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death
to his heirs. The contracts, therefore, give rise to contingent claims provable against his estate under
section 5, Rule 87 (2 Moran, 1952 ed., p. 437; chan roblesvirtualawlibraryGaskell & Co. vs. Tan Sit, 43
Phil. 810, 814).

The most common example of the contigent claim is that which arises when a person is bound as
surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of suretyship
the surety has no claim whatever against his principal until he himself pays something by way of
satisfaction upon the obligation which is secured. When he does this, there instantly arises in favor of
the surety the right to compel the principal to exonerate the surety. But until the surety has contributed
something to the payment of the debt, or has performed the secured obligation in whole or in part, he
has no right of action against anybody no claim that could be reduced to judgment. (May vs. Vann, 15
Pla., 553; chan roblesvirtualawlibraryGibson vs. Mithell, 16 Pla., 519; chan roblesvirtualawlibraryMaxey
vs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs. Pulliam, 7 Baxt. [Tenn.], 119; chan roblesvirtualawlibraryErnst
vs. Nou, 63 Wis., 134.)

For Defendant administratrix it is averred that the above doctrine refers to a case where the surety files
claims against the estate of the principal debtor; chan roblesvirtualawlibraryand it is urged that the rule
does not apply to the case before us, where the late Hemady was a surety, not a principal debtor. The
argument evinces a superficial view of the relations between parties. If under the Gaskell ruling, the
Luzon Surety Co., as guarantor, could file a contingent claim against the estate of the principal debtors if
the latter should die, there is absolutely no reason why it could not file such a claim against the estate of
Hemady, since Hemady is a solidary co-debtor of his principals. What the Luzon Surety Co. may claim
from the estate of a principal debtor it may equally claim from the estate of Hemady, since, in view of
the existing solidarity, the latter does not even enjoy the benefit of exhaustion of the assets of the
principal debtor.

The foregoing ruling is of course without prejudice to the remedies of the administratrix against the
principal debtors under Articles 2071 and 2067 of the New Civil Code.

Our conclusion is that the solidary guarantors liability is not extinguished by his death, and that in such
event, the Luzon Surety Co., had the right to file against the estate a contingent claim for
reimbursement. It becomes unnecessary now to discuss the estates liability for premiums and stamp
taxes, because irrespective of the solution to this question, the Luzon Suretys claim did state a cause of
action, and its dismissal was erroneous.

Wherefore, the order appealed from is reversed, and the records are ordered remanded to the court of
origin, with instructions to proceed in accordance with law. Costs against the Administratrix- Appellee.
SO ORDERED.

EN BANC

[G. R. No. 4275. March 23, 1909.]

PAULA CONDE, Plaintiff-Appellee, vs. ROMAN ABAYA, Defendant-Appellant.



D E C I S I O N

ARELLANO, C.J.:

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

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

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

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

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

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

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

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

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

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

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

According to section 782 of the Code of Civil Procedure

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

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

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

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

In resolving a similar question Manresa says: chanrobles virtualawlibrary An acknowledgment can only
be demanded by the natural child and his descendants whom it shall benefit, and should they be minors
or otherwise incapacitated, such person as legally represents them; the mother may ask it in behalf of
her child so long as he is under her authority. On this point no positive declaration has been made,
undoubtedly because it was not considered necessary. A private action is in question and the general
rule must be followed. Elsewhere the same author adds: chanrobles virtualawlibrary It may so happen
that the child dies before four years have expired after attaining majority, or that the document
supporting his petition for acknowledgment is discovered after his death, such death perhaps occurring
after his parents had died, as is supposed by article 137, or during their lifetime. In any case such right of
action shall pertain to the descendants of the child whom the acknowledgment may interest. (See
Commentaries to arts. 135 and 137, Civil Code. Vol. I.) cralaw

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Ibid., Vol. II, 171.) cralaw

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

Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that the right of
investigation forms a part of the estate of the child, and along with his patrimony is transmitted to his
heirs. The affirmation is altogether too categorical to be admissible. If it were correct the same thing
would happen as when the legitimacy of a child is claimed, and as already seen, the right of action to
demand the legitimacy is not transmitted to the heirs in every case and as an absolute right, but under
certain limitations and circumstances. Now, were we to admit the doctrine of the court of Rennes, the
result would be that the claim for natural filiation would be more favored than one for legitimate
filiation. This would be absurd, because it cannot be conceived that the legislator should have granted a
right of action to the heirs of the natural child, which is only granted under great limitations and in very
few cases to those of a legitimate one. Some persons insist that the same rules that govern legitimate
filiation apply by analogy to natural filiation, and that in this conception the heirs of the natural child are
entitled to claim it in the cases prescribed by article 118. The majority, however, are inclined to consider
the right to claim acknowledgment as a personal right, and consequently, not transmissive to the heirs.
Really there are not legal grounds to warrant the transmission. (Vol. 2, 229.) cralaw

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

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

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

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

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

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



Separate Opinions

TORRES, J., dissenting: chanrobles virtualawlibrary

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

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

Article 846 of the Civil Code prescribes: chanrobles virtualawlibrary

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

Article 944 reads: chanrobles virtualawlibrary

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

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

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

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

In order to complete the explanation of this article 137 of the Civil Code, three points must be decided:
chanrobles virtualawlibrary (1) Against whom shall an action for acknowledgment be brought under the
cases and terms to which the two exceptions indicated in paragraphs 1 and 2 of article 137 refer? (2)
Who is to represent the miner in bringing this action when neither the father nor the mother has
acknowledged him? (3) Should this right of action be considered as transmitted to the heirs or
descendants of the natural child whether or not it was exercised at the time of his death?

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

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

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

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

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

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

It is true that nothing is provided by article 137 with reference to the transmission to the natural mother
of the right to claim the acknowledgment of her natural children, but, as Sanchez Roman says, it does
not expressly prohibit it; and as opposed to the silence of the said article, we find the provisions of
articles 846 and 944 of the Civil code, which expressly recognized the right of the natural mother to
succeed her natural child, a right which is transmitted to her by operation of law from the moment that
the child ceases to exist.

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

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

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

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