G.R. No.

L-4275

March 23, 1909

PAULA CONDE, plaintiff-appellee,

vs.
ROMAN ABAYA, defendant-appellant.
C. Oben for appellant.
L. Joaquin for appellee.
ARELLANO, C.J.:
From the hearing of the appeal interposed by Roman Abaya in the special proceedings brought in the Court of First Instance of La
Laguna for the settlement of the intestate estate and the distribution of the property of Casiano Abaya it appears:
I. As antecedents: that Casiano Abaya, unmarried, the son of Romualdo Abaya and Sabrina Labadia, died on the 6th of April, 1899;
that Paula Conde, as the mother of the natural children Jose and Teopista Conde, whom the states she had by Casiano Abaya, on the
6th of November, 1905, moved the settlement of the said intestate succession; that an administrator having been appointed for the
said estate on the 25th of November, 1905, Roman Abaya, a son of the said Romualdo Abaya and Sabrina Labadia, the parents of the
late Casiano Abaya, came forward and opposed said appointment and claimed it for himself as being the nearest relative of the
deceased; that this was granted by the court below on the 9th of January, 1906; that on the 17th of November, 1906, Roman Abaya
moved that, after due process of law, the court declare him to be the sole heir of Casiano Abaya, to the exclusion of all other persons,
especially of Paula Conde, and to be therefore entitled to take possession of all the property of said estate, and that it be adjudicated
to him; and that on November 22, 1906, the court ordered the publication of notices for the declaration of heirs and distribution of the
property of the estate.
II. That on the 28th of November, 1906, Paula Conde, in replying to the foregoing motion of Roman Abaya, filed a petition wherein she
stated that she acknowledged the relationship alleged by Roman Abaya, but that she considered that her right was superior to his and
moved for a hearing of the matter, and, in consequence of the evidence that she intended to present she prayed that she be declared
to have preferential rights to the property left by Casiano Abaya, and that the same be adjudicated to her together with the
corresponding products thereof.
III. That the trial was held, both parties presenting documentary and oral evidence, and the court below entered the following
judgment:
That the administrator of the estate of Casiano Abaya should recognize Teopista and Jose Conde as being natural children of Casiano
Abaya; that the petitioner Paula Conde should succeed to the hereditary rights of her children with respect to the inheritance of their
deceased natural father Casiano Abaya; and therefore, it is hereby declared that she is the only heir to the property of the said
intestate estate, to the exclusion of the administrator, Roman Abaya.
IV. That Roman Abaya excepted to the foregoing judgment, appealed to this court, and presented the following statement of errors:
1. The fact that the court below found that an ordinary action for the acknowledgment of natural children under articles 135 and 137 of
the Civil Code, might be brought in special probate proceedings.
2. The finding that after the death of a person claimed to be an unacknowledged natural child, the mother of such presumed natural
child, as heir to the latter, may bring an action to enforce the acknowledgment of her deceased child in accordance with articles 135
and 137 of the Civil Code.
3. The finding in the judgment that the alleged continuos possession of the deceased children of Paula Conde of the status of natural
children of the late Casiano Abaya, has been fully proven in these proceedings; and
4. On the hypothesis that it was proper to adjudicate the property of this intestate estate to Paula Conde, as improperly found by the
court below, the court erred in not having declared that said property should be reserved in favor of relatives of Casiano Abaya to the
third degree, and in not having previously demanded securities from Paula Conde to guarantee the transmission of the property to
those who might fall within the reservation.
As to the first error assigned, the question is set up as to whether in special proceedings for the administration and distribution of an
intestate estate, an action might be brought to enforce the acknowledgment of the natural child of the person from whom the
inheritance is derived, that is to say, whether one might appear as heir on the ground that he is a recognized natural child of the
deceased, not having been so recognized by the deceased either voluntarily or compulsorily by reason of a preexisting judicial
decision, but asking at the same time that, in the special proceeding itself, he be recognized by the presumed legitimate heirs of the
deceased who claim to be entitled to the succession opened in the special proceeding.
According to section 782 of the Code of Civil Procedure
If there shall be a controversy before the Court of First Instance as to who the lawful heirs of the deceased person are, or as to the
distributive share to which each person is entitled under the law, the testimony as to such controversy shall be taken in writing by the
judge, under oath, and signed by the witness. Any party in interest whose distributive share is affected by the determination of such
controversy, may appeal from the judgment of the Court of First Instance determining such controversy to the Supreme Court, within
the time and in the manner provided in the last preceding section.
This court has decided the present question in the manner shown in the case of Juana Pimentel vs. Engracio Palanca (5 Phil. Rep.,
436.)

The main question with regard to the second error assigned, is whether or not the mother of a natural child now deceased, but who
survived the person who, it is claimed, was his natural father, also deceased, may bring an action for the acknowledgment of the
natural filiation in favor of such child in order to appear in his behalf to receive the inheritance from the person who is supposed to be
his natural father.
In order to decide in the affirmative the court below has assigned the following as the only foundation:
In resolving a similar question Manresa says: "An acknowledgment can only be demanded by the natural child and his descendants
whom it shall benefit, and should they be minors or otherwise incapacitated, such person as legally represents them; the mother may
ask it in behalf of her child so long as he is under her authority." On this point no positive declaration has been made, undoubtedly
because it was not considered necessary. A private action is in question and the general rule must be followed. Elsewhere the same
author adds: "It may so happen that the child dies before four years have expired after attaining majority, or that the document
supporting his petition for acknowledgment is discovered after his death, such death perhaps occurring after his parents had died, as
is supposed by article 137, or during their lifetime. In any case such right of action shall pertain to the descendants of the child whom
the acknowledgment may interest." (See Commentaries to arts. 135 and 137, Civil Code, Vol. I.)
The above doctrine, advanced by one of the most eminent commentators of the Civil Code, lacks legal and doctrinal foundation. The
power to transmit the right of such action by the natural child to his descendants can not be sustained under the law, and still less to
his mother.
It is without any support in law because the rule laid down in the code is most positive, limiting in form, when establishing the
exception for the exercise of such right of action after the death of the presumed parents, as is shown hereafter. It is not supported by
any doctrine, because up to the present time no argument has been presented, upon which even an approximate conclusion could be
based.
Although the Civil Code considerably improved the condition of recognized natural children, granting them rights and actions that they
did not possess under the former laws, they were not, however, placed upon the same place as legitimate ones. The difference that
separates these two classes of children is still great, as proven by so many articles dealing with the rights of the family and the
succession in relation to the members thereof. It may be laid down as legal maxim, that whatever the code does not grant to the
legitimate children, or in connection with their rights, must still less be understood as granted to recognized natural children or in
connection with their rights. There is not a single exception in its provisions.
If legitimacy is the attribute that constitutes the basis of the absolute family rights of the child, the acknowledgment of the natural child
is, among illegitimate ones, that which unites him to the family of the father or the mother who recognized him, and affords him a
participation in the rights of the family, relatively advantageous according to whether they are alone or whether they concur with other
individuals of the family of his purely natural father or mother.
Thus, in order to consider the spirit of the Civil Code, nothing is more logical than to establish a comparison between an action to
claim the legitimacy, and one to enforce acknowledgment.
ART. 118. The action to claim its legitimacy may be brought by the child at any time of its lifetime and shall be transmitted to its heirs,
should it die during minority or in a state of insanity. In such cases the heirs shall be allowed a period of five years in which to institute
the action.
The action already instituted by the child is transmitted by its death to the heirs, if it has not lapsed before then.
ART. 137. The actions for the acknowledgment of natural children can be instituted only during the life of the presumed parents,
except in the following cases:
1. If the father or mother died during the maturity of the child, in which case the latter may institute the action before the expiration of
the first four years of its maturity.
2. If, after the death of the father or mother, some instrument, before unknown, should be discovered in which the child is expressly
acknowledged.
In this case the action must be instituted with the six months following the discovery of such instrument.
On this supposition the first difference that results between one action and the other consists in that the right of action for legitimacy
lasts during the whole lifetime of the child, that is, it can always be brought against the presumed parents or their heirs by the child
itself, while the right of action for the acknowledgment of a natural child does not last his whole lifetime, and, as a general rule, it can
not be instituted against the heirs of the presumed parents, inasmuch as it can be exercised only during the life of the presumed
parents.
With regard to the question at issue, that is, the transmission to the heirs of the presumed parents of the obligation to admit the
legitimate filiation, or to recognize the natural filiation, there exists the most radical difference in that the former continues during the
life of the child who claims to be legitimate, and he may demand it either directly and primarily from the said presumed parents, or
indirectly and secondarily from the heirs of the latter; while the second does not endure for life; as a general rule, it only lasts during
the life of the presumed parents. Hence the other difference, derived as a consequence, that an action for legitimacy is always brought
against the heirs of the presumed parents in case of the death of the latter, while the action for acknowledgment is not brought against
the heirs of such parents, with the exception of the two cases prescribed by article 137 transcribed above.
So much for the passive transmission of the obligation to admit the legitimate filiation, or to acknowledge the natural filiation.
As to the transmission to the heirs of the child of the latter's action to claim his legitimacy, or to obtain the acknowledgment of his
natural filiation, it is seen that the code grants it in the first case, but not in the second. It contains provisions for the transmission of the

right of action which, for the purpose claiming his legitimacy inheres in the child, but it does not say a word with regard to the
transmission of the right to obtain the acknowledgment of the natural filiation.
Therefore, the respective corollary of each of the two above-cited articles is: (1) That the right of action which devolves upon the child
to claim his legitimacy under article 118, may be transmitted to his heirs in certain cases designated in the said article; (2) That the
right of action for the acknowledgment of natural children to which article 137 refers, can never be transmitted, for the reason that the
code makes no mention of it in any case, not even as an exception.
It is most illogical and contrary to every rule of correct interpretation, that the right of action to secure acknowledgment by the natural
child should be presumed to be transmitted, independently, as a rule, to his heirs, while the right of action to claim legitimacy from his
predecessor is not expressly, independently, or, as a general rule, conceded to the heirs of the legitimate child, but only relatively and
as an exception. Consequently, the pretension that the right of action on the part of the child to obtain the acknowledgment of his
natural filiation is transmitted to his descendants is altogether unfounded. No legal provision exists to sustain such pretension, nor can
an argument of presumption be based on the lesser claim when there is no basis for the greater one, and when it is only given as an
exception in well-defined cases. It is placing the heirs of the natural child on a better footing than the heirs of the legitimate one, when,
as a matter of fact, the position of a natural child is no better than, no even equal to, that of a legitimate child.
From the express and precise precepts of the code the following conclusions are derived:
The right of action that devolves upon the child to claim his legitimacy lasts during his whole life, while the right to claim the
acknowledgment of a natural child lasts only during the life of his presumed parents.
Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during his whole life, he may exercise it either against
the presumed parents, or their heirs; while the right of action to secure the acknowledgment of a natural child, since it does not last
during his whole life, but depends on that of the presumed parents, as a general rule can only be exercised against the latter.
Usually the right of action for legitimacy devolving upon the child is of a personal character and pertains exclusively to him, only the
child may exercise it at any time during his lifetime. As an exception, and in three cases only, it may be transmitted to the heirs of the
child, to wit, if he died during his minority, or while insane, or after action had been already instituted.
An action for the acknowledgment of a natural child may, as an exception, be exercised against the heirs of the presumed parents in
two cases: first, in the event of the death of the latter during the minority of the child, and second, upon the discovery of some
instrument of express acknowledgment of the child, executed by the father or mother, the existence of which was unknown during the
life of the latter.
But such action for the acknowledgment of a natural child can only be exercised by him. It can not be transmitted to his descendants,
or his ascendants.
In support of the foregoing the following authorities may be cited:
Sanchez Roman, in his Treatise of Civil Law, propounds the question as to whether said action should be considered transmissive to
the heirs or descendants of the natural child, whether he had or had not exercised it up to the time of his death, and decides it as
follows:
There is an entire absence of legal provisions, and at most, it might be deemed admissible as a solution, that the right of action to
claim the acknowledgment of a natural child is transmitted by the analogy to his heirs on the same conditions and terms that it is
transmitted to the descendants of a legitimate child, to claim his legitimacy, under article 118, but nothing more; because on this point
nothing warrants placing the heirs of a natural child on a better footing than those of the legitimate child, and even to compare
themwould not fail to be a strained and questionable matter, and one of great difficulty for decision by the courts, for the simple reason
that for the heirs of the legitimate child, the said article 118 exists, while for those of the natural child, as we have said, there is no
provision in the code authorizing the same, although on the other hand there is none that prohibits it. (Vol. V.)
Diaz Guijarro and Martinez Ruiz in their work on "The Civil Code as construed by the supreme court of Spain," commenting upon
article 137, say:
Article 118, taking into account the privileges due to the legitimacy of children, grants them the right to claim said legitimacy during
their lifetime, and even authorizes the transmission of said right for the space of five years to the heirs thereof, if the child die during
his minority or in a state of insanity. But as article 137 is based on the consideration that in the case of a natural child, ties are less
strong and sacred in the eyes of the law, it does not fix such a long and indefinite period for the exercise of the action; it limits it to the
life of the parents, excepting in the two cases mentioned in said article; and it does not allow, as does article 118, the action to pass
on to the heirs, inasmuch as, although it does not prohibit it, and for that reason it might be deemed on general principles of law to
consent to it, such a supposition is inadmissible for the reason that a comparison of both articles shows that the silence of the law in
the latter case is not, nor it can be, an omission, but a deliberate intent to establish a wide difference between the advantages granted
to a legitimate child and to a natural one.
(Ibid., Vol. II, 171.)
Navarro Amandi (Cuestionario del Cdigo Civil) raises the question: "Can the heirs of a natural child claim the acknowledgment in
those cases wherein the father or mother are under obligation to acknowledge"? And says:
Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that the right of investigation forms a part of the estate of
the child, and along with his patrimony is transmitted to his heirs. The affirmation is altogether too categorical to be admissible. If it
were correct the same thing would happen as when the legitimacy of a child is claimed, and as already seen, the right of action to
demand the legitimacy is not transmitted to the heirs in every case and as an absolute right, but under certain limitations and
circumstances. Now, were we to admit the doctrine of the court of Rennes, the result would be that the claim for natural filiation would
be more favored than one for legitimate filiation. This would be absurd, because it can not be conceived that the legislator should have

granted a right of action to the heirs of the natural child, which is only granted under great limitations and in very few cases to those of
a legitimate one. Some persons insist that the same rules that govern legitimate filiation apply by analogy to natural child are entitled
to claim it in the cases prescribed by the article 118. The majority, however, are inclined to consider the right to claim acknowledgment
as a personal right, and consequently, not transmissive to the heirs. Really there are no legal grounds to warrant the transmission.
(Vol. 2, 229.)
In a decision like the present one it is impossible to bring forward the argument of analogy for the purpose of considering that the heirs
of the natural child are entitled to the right of action which article 118 concedes to the heirs of the legitimate child. The existence of a
provision for the one case and the absence thereof for the other is a conclusive argument that inclusio unius est exclusio alterius, and
it can not be understood that the provision of law should be the same when the same reason does not hold in the one case as in the
other.
The theory of law of transmission is also entirely inapplicable in this case. This theory, which in the Roman Law expressed the general
rule than an heir who did not accept an inheritance during his lifetime was incapacitated from transmitting it to his own heirs, included
at the same time the idea that if the inheritance was not transmitted because the heir did not possess it, there were, however, certain
things which the heir held and could transmit. Such was the law and the right to accept the inheritance, for the existing reason that all
rights, both real and personal, shall pass to the heir; quia haeres representat defunctum in omnibus et per omnia. According to the
article 659 of the Civil Code, "the inheritance includes all the property, rights, and obligations of a person, which are not extinguished
by his death." If the mother is the heir of her natural child, and the latter, among other rights during his lifetime was entitled to exercise
an action of his acknowledgment against his father, during the life of the latter, if after his death in some of the excepting cases of
article 137, such right, which is a portion of his inheritance, is transmitted to his mother as being his heir, and it was so understood by
the court of Rennes when it considered the right in question, not as a personal and exclusive right of the child which is extinguished by
his death, but a any other right which might be transmitted after his death. This right of supposed transmission is even less tenable
than that sought to be sustained by the argument of analogy.
The right of action pertaining to the child to claim his legitimacy is in all respects superior to that of the child who claims
acknowledgment as a natural child. And it is evident that the right of action to claim his legitimacy is not one of those rights which the
legitimate child may transmit by inheritance to his heirs; it forms no part of the component rights of his inheritance. If it were so, there
would have been no necessity to establish its transmissibility to heirs as an exception in the terms and conditions of article 118 of the
code. So that, in order that it may constitute a portion of the child's inheritance, it is necessary that the conditions and the terms
contained in article 118 shall be present, since without them, the right that the child held during his lifetime, being personal and
exclusive in principle, and therefore, as a general rule not susceptible of transmission, would and should have been extinguished by
his death. Therefore, where no express provision like that of article 118 exists, the right of action for the acknowledgment of a natural
child is, in principle and without exception, extinguished by his death, and can not be transmitted as a portion of the inheritance of the
deceased child.
On the other hand, if said right of action formed a part of the child's inheritance, it would be necessary to establish the doctrine that the
right to claim such an acknowledgment from the presumed natural father and from his heirs is an absolute right of the heirs of the
child, not limited by certain circumstances as in the case of the heirs of a natural child with a legitimate one to place the heirs of a
natural child and his inheritance on a better footing than those of a legitimate child would not only be unreasonable, but, as stated in
one of the above citations, most absurd and illegal in the present state of the law and in accordance with the general principles
thereof.
For all of the foregoing reasons we hereby reverse the judgment appealed from in all its parts, without any special ruling as to the
costs of this instance.
Mapa, Johnson, Carson, and Willard, JJ., concur.

Separate Opinions
TORRES, J., dissenting:
The questions arising from the facts and points of law discussed in this litigation between the parties thereto, decided in the judgment
appealed from, and set up and discussed in this instance by the said parties in their respective briefs, are subordinate in the first place
to the main point, submitted among others to the decision of this court, that is, whether the right of action brought to demand from the
natural father, or from his heirs, the acknowledgment of the natural child which the former left at his death was, by operation of the law,
transmitted to the natural mother by reason of the death of the said child acknowledged by her.
The second error assigned by the appellant in his brief refers exclusively to this important point of law.
Article 846 of the Civil Code prescribes:
The right of succession which the law grants natural children extends reciprocally in similar cases to the natural father or mother.
Article 944 reads:
If the acknowledged natural or legitimized child should die without issue, either legitimate or acknowledged by it, the father or mother
who acknowledged it shall succeed to its entire estate, and if both acknowledged it and are alive, they shall inherit from it share and
share alike.
It can not be inferred from the above legal provisions that from the right succession which the law grants the natural father or mother
upon the death of their natural child, the right of heirs of any of the said parents to claim the acknowledgment of the natural child is
excluded. No article is to be found in the Civil Code that expressly provides for such exclusion or elimination of the right of the heirs of
the deceased child to claim his acknowledgment.

If under article 659 of said code, the inheritance includes all the property, rights, and obligations of a person, which are not
extinguished by his death, it is unquestionable that among such rights stands that which the natural child had, while alive, to claim his
acknowledgment as such from his natural father, or from the heirs of the latter. There is no reason or legal provision whatever to
prevent the consideration that the right to claim acknowledgment of the filiation of a deceased child from his natural father, or from the
heirs of the latter, is included in the hereditary succession of the deceased child in favor of his natural mother.
It is to be regretted that such an eminent writer as Manresa is silent on this special point, or that he is not very explicit in his comments
on article 137 of the Civil Code. Among the various noted writers on law, Professor Sanchez Roman is the only one who has given his
opinion in a categorical manner as to whether or not the right of action for the acknowledgment of a deceased natural child shall be
considered transmissive to his heirs, as may bee seen from the following:
In order to complete the explanation of this article 137 of the Civil Code, three points must be decided: (1) Against whom shall an
action for acknowledgment be brought under the cases and terms to which the two exceptions indicate in paragraphs 1 and 2 of article
137 refer? (2) Who is to represent the minor in bringing this action when neither the father nor the mother has acknowledged him? (3)
Should this right of action be considered as transmitted to the heirs or descendants of the natural child whether or not it was exercised
at the time of his death?
With respect to the third, there is an entire absence of legal provisions, and at most, it might be deemed admissible as a solution, that
the right of action to claim acknowledgment of a natural child is transmitted by analogy to his heirs on the same conditions and terms
that it is transmitted to the descendants of the legitimate child, to claim his legitimacy, under article 118, but no more; because on his
point nothing warrants placing the heirs of a natural child on a better footing than those of the legitimate child, and even to compare
them would not fail to be strained and questionable matter, and one of great difficulty for decision by the courts, for the simple reason
that for the heirs of the legitimate child the said article 118 exists, while for those of the natural child, as we have said, there is no
provision in the code authorizing the same, although on the other hand there is none that prohibits it.
Certainly there is no article in the Civil Code, or any special law that bars the transmission to the heirs of a natural child, particularly to
his natural mother, of the right of action to claim the acknowledgment of said natural child from the heirs of his deceased natural father.
According to the above-cited article 944 of the Civil Code, the only persons designated to succeed to the intestate estate of a natural
child who died during minority or without issue are its natural father or mother who acknowledged it; consequently if by operation of the
law his parents are his legal successors or heirs, it is unquestionable that by reason of the child's death the property, rights, and
obligations of the deceased minor were, as a matter of fact, transmitted to them, among which was the right to demand the
acknowledgment of the said deceased natural child from the heirs of the deceased natural father or mother, respectively, on account of
having enjoyed uninterruptedly the status of natural child of the said deceased parents. (Arts. 135 and 136, Civil Code.)
At the death of the children, Teopista in 1902, and Jose in 1903, during their minority, and after the death of their natural father which
took place in 1899, the natural mother of the said minors, Paula Conde, succeeded them in all of their property and rights, among
which must necessarily appear and be included the right of action to claim the acknowledgment of said two children from the heirs of
Icasiano Abaya, their deceased natural father. There is no legal provision or precept whatever excluding such right from those which,
by operation of the law, were transmitted to the mother, Paula Conde, or expressly declaring that the said right to claim such
acknowledgment is extinguished by the death of the natural children.
It is true that, as a general rule, an action for acknowledgment can not be brought by a surviving natural child after the death of his
parents, except in the event he was a minor at the time of the death of either of his parents, as was the case with minors Teopista and
Jose Conde, who, if living, would unquestionably be entitled to institute an action for acknowledgment against the presumed heirs of
their natural father; and as there is no law that provides that said right is extinguished by the death of the same, and that the mother
did not inherit it from the said minors, it is also unquestionable that Paula Conde, the natural mother and successor to the rights of
said minors, is entitled to exercise the corresponding action for acknowledgment.
If the natural mother had no right of action against the heirs of the natural father, for the acknowledgment for her natural child, the
unlimited and unconditional reciprocity established by the article 846 of the code would neither be true nor correct. It should be noticed
that the relation of paternity and that of filiation between the above-mentioned father and children are both natural in character;
therefore, the intestate succession of the said children of Paula Conde is governed exclusively by articles 944 and 945 of the said
code.
It is true that nothing is provided by article 137 with reference to the transmission to the natural mother of the right to claim the
acknowledgment of her natural children, but, as Sanchez Roman says, it does not expressly prohibit it; and as opposed to the silence
of the said article, we find the provisions of articles 846 and 944 of the Civil Code, which expressly recognize the right of the natural
mother to succeed her natural child, a right which is transmitted to her by operation of law from the moment that the child ceases to
exist.
The question herein does not bear upon the right of a child to claim his legitimacy, as provided in article 118 of the code, nor is it
claimed that the rights of natural children and their mother are equal to those of legitimate ones, even by analogy.
The foundations of this opinion are based solely on the provisions of the above-mentioned articles of the code, and I consider that they
are sustainable so long as it is not positively proven that the so often-mentioned right of action for acknowledgment is extinguished by
the death of the minor natural child, and is not transmitted to the natural mother by express declaration or prohibition of the law,
together with the property and other rights in the intestate succession.
In view of the considerations above set forth it is my opinion that it should be held: that Paula Conde, as the natural mother and sole
heir of her children Teopista and Jose, was and is entitled to the right to institute proceedings to obtain the acknowledgment of the
latter as natural children of the late Icasiano Abaya, from Roman Abaya, as heir and administrator of the estate of the said Icasiano
Abaya; and that the said Teopista and Jose who died during their minority, three years after the death of their father, should be
considered and acknowledged as such natural children of the latter, for the reason that while living they uninterruptedly enjoyed the
status of his natural children. The judgment appealed from should be affirmed without any special ruling as to costs.

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

EN BANC
[G.R. No. L-8437. November 28, 1956.]
ESTATE OF K. H. HEMADY, deceased, vs. LUZON SURETY CO., INC., claimant-Appellant.

DECISION
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
bonds, each subscribed by a distinct principal
of them, in consideration of the Luzon Surety
creditors.
The
twenty
counterbonds,
stipulations:chanroblesvirtuallawlibrary

the Estate based on twenty different indemnity agreements, or counter

and by the deceased K. H. Hemady, a surety solidary guarantor) in all
Co.s of having guaranteed, the various principals in favor of different
or
indemnity
agreements,
all
contained
the
following

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.
xxx

xxx

xxx

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.
xxx

xxx

xxx

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).
xxx

xxx

xxx

The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure, and,
in accordance with that principle, the heirs of a deceased person cannot be held to be third persons in relation to
any contracts touching the real estate of their decedent which comes in to their hands by right of inheritance; 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.
Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia and
Felix, JJ., concur.

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

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

Renecio R. Espiritu for private respondents.

FERNAN, C.J.:
This is a petition for review on certiorari seeking the reversal of: (a) the decision of the Fourth Civil Cases Division of the Intermediate
Appellate Court dated August 31, 1983 in AC-G.R. CV No. 56626 entitled "Jesus Yanes et al. v. Dr. Rodolfo Siason et al." affirming the
decision dated July 8, 1974 of the Court of First Instance of Negros Occidental insofar as it ordered the petitioners to pay jointly and
severally the private respondents the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral
survey of Murcia, Negros Occidental and reversing the subject decision insofar as it awarded the sums of P2,000.00, P5,000.00 and
P2,000.00 as actual damages, moral damages and attorney's fees, respectively and (b) the resolution of said appellate court dated
May 30, 1984, denying the motion for reconsideration of its decision.
The real properties involved are two parcels of land identified as Lot 773-A and Lot 773-B which were originally known as Lot 773 of
the cadastral survey of Murcia, Negros Occidental. Lot 773, with an area of 156,549 square meters, was registered in the name of the
heirs of Aniceto Yanes under Original Certificate of Title No. RO-4858 (8804) issued on October 9, 1917 by the Register of Deeds of
Occidental Negros (Exh. A).
Aniceto Yanes was survived by his children, Rufino, Felipe and Teodora. Herein private respondents, Estelita, Iluminado and Jesus,
are the children of Rufino who died in 1962 while the other private respondents, Antonio and Rosario Yanes, are children of Felipe.
Teodora was survived by her child, Jovita (Jovito) Alib. 1 It is not clear why the latter is not included as a party in this case.
Aniceto left his children Lots 773 and 823. Teodora cultivated only three hectares of Lot 823 as she could not attend to the other
portions of the two lots which had a total area of around twenty-four hectares. The record does not show whether the children of Felipe
also cultivated some portions of the lots but it is established that Rufino and his children left the province to settle in other places as a
result of the outbreak of World War II. According to Estelita, from the "Japanese time up to peace time", they did not visit the parcels of
land in question but "after liberation", when her brother went there to get their share of the sugar produced therein, he was informed
that Fortunato Santiago, Fuentebella (Puentevella) and Alvarez were in possession of Lot 773. 2
It is on record that on May 19, 1938, Fortunato D. Santiago was issued Transfer Certificate of Title No. RF 2694 (29797) covering Lot
773-A with an area of 37,818 square meters. 3 TCT No. RF 2694 describes Lot 773-A as a portion of Lot 773 of the cadastral survey of
Murcia and as originally registered under OCT No. 8804.
The bigger portion of Lot 773 with an area of 118,831 square meters was also registered in the name of Fortunato D. Santiago on
September 6, 1938 Under TCT No. RT-2695 (28192 ). 4 Said transfer certificate of title also contains a certification to the effect that Lot
773-B was originally registered under OCT No. 8804.
On May 30, 1955, Santiago sold Lots 773-A and 773-B to Monico B. Fuentebella, Jr. in consideration of the sum of
P7,000.00. 5 Consequently, on February 20, 1956, TCT Nos. T-19291 and T-19292 were issued in Fuentebella's name. 6
After Fuentebella's death and during the settlement of his estate, the administratrix thereof (Arsenia R. Vda. de Fuentebella, his wife)
filed in Special Proceedings No. 4373 in the Court of First Instance of Negros Occidental, a motion requesting authority to sell Lots
773-A and 773-B. 7 By virtue of a court order granting said motion, 8 on March 24, 1958, Arsenia Vda. de Fuentebella sold said lots for
P6,000.00 to Rosendo Alvarez. 9 Hence, on April 1, 1958 TCT Nos. T-23165 and T-23166 covering Lots 773-A and 773-B were
respectively issued to Rosendo Alvarez. 10
Two years later or on May 26, 1960, Teodora Yanes and the children of her brother Rufino, namely, Estelita, Iluminado and Jesus, filed
in the Court of First Instance of Negros Occidental a complaint against Fortunato Santiago, Arsenia Vda. de Fuentebella, Alvarez and
the Register of Deeds of Negros Occidental for the "return" of the ownership and possession of Lots 773 and 823. They also prayed
that an accounting of the produce of the land from 1944 up to the filing of the complaint be made by the defendants, that after court
approval of said accounting, the share or money equivalent due the plaintiffs be delivered to them, and that defendants be ordered to
pay plaintiffs P500.00 as damages in the form of attorney's fees. 11
During the pendency in court of said case or on November 13, 1961, Alvarez sold Lots 773-A, 773-B and another lot for P25,000.00 to
Dr. Rodolfo Siason. 12 Accordingly, TCT Nos. 30919 and 30920 were issued to Siason, 13 who thereafter, declared the two lots in his
name for assessment purposes. 14
Meanwhile, on November 6, 1962, Jesus Yanes, in his own behalf and in behalf of the other plaintiffs, and assisted by their counsel,
filed a manifestation in Civil Case No. 5022 stating that the therein plaintiffs "renounce, forfeit and quitclaims (sic) any claim, monetary
or otherwise, against the defendant Arsenia Vda. de Fuentebella in connection with the above-entitled case." 15
On October 11, 1963, a decision was rendered by the Court of First Instance of Negros Occidental in Civil Case No. 5022, the
dispositive portion of which reads:
WHEREFORE, judgment is rendered, ordering the defendant Rosendo Alvarez to reconvey to the plaintiffs lots Nos. 773 and 823 of
the Cadastral Survey of Murcia, Negros Occidental, now covered by Transfer Certificates of Title Nos. T-23165 and T-23166 in the
name of said defendant, and thereafter to deliver the possession of said lots to the plaintiffs. No special pronouncement as to costs.

SO ORDERED. 16
It will be noted that the above-mentioned manifestation of Jesus Yanes was not mentioned in the aforesaid decision.
However, execution of said decision proved unsuccessful with respect to Lot 773. In his return of service dated October 20, 1965, the
sheriff stated that he discovered that Lot 773 had been subdivided into Lots 773-A and 773-B; that they were "in the name" of Rodolfo
Siason who had purchased them from Alvarez, and that Lot 773 could not be delivered to the plaintiffs as Siason was "not a party per
writ of execution." 17
The execution of the decision in Civil Case No. 5022 having met a hindrance, herein private respondents (the Yaneses) filed on July
31, 1965, in the Court of First Instance of Negros Occidental a petition for the issuance of a new certificate of title and for a declaration
of nullity of TCT Nos. T-23165 and T-23166 issued to Rosendo Alvarez. 18 Thereafter, the court required Rodolfo Siason to produce the
certificates of title covering Lots 773 and 823.
Expectedly, Siason filed a manifestation stating that he purchased Lots 773-A, 773-B and 658, not Lots 773 and 823, "in good faith
and for a valuable consideration without any knowledge of any lien or encumbrances against said properties"; that the decision in the
cadastral proceeding 19 could not be enforced against him as he was not a party thereto; and that the decision in Civil Case No. 5022
could neither be enforced against him not only because he was not a party-litigant therein but also because it had long become final
and executory. 20 Finding said manifestation to be well-founded, the cadastral court, in its order of September 4, 1965, nullified its
previous order requiring Siason to surrender the certificates of title mentioned therein. 21
In 1968, the Yaneses filed an ex-parte motion for the issuance of an alias writ of execution in Civil Case No. 5022. Siason opposed
it. 22 In its order of September 28, 1968 in Civil Case No. 5022, the lower court, noting that the Yaneses had instituted another action
for the recovery of the land in question, ruled that at the judgment therein could not be enforced against Siason as he was not a party
in the case. 23
The action filed by the Yaneses on February 21, 1968 was for recovery of real property with damages. 24 Named defendants therein
were Dr. Rodolfo Siason, Laura Alvarez, Flora Alvarez, Raymundo Alvarez and the Register of Deeds of Negros Occidental. The
Yaneses prayed for the cancellation of TCT Nos. T-19291 and 19292 issued to Siason (sic) for being null and void; the issuance of a
new certificate of title in the name of the Yaneses "in accordance with the sheriffs return of service dated October 20, 1965;" Siason's
delivery of possession of Lot 773 to the Yaneses; and if, delivery thereof could not be effected, or, if the issuance of a new title could
not be made, that the Alvarez and Siason jointly and severally pay the Yaneses the sum of P45,000.00. They also prayed that Siason
render an accounting of the fruits of Lot 773 from November 13, 1961 until the filing of the complaint; and that the defendants jointly
and severally pay the Yaneses moral damages of P20,000.00 and exemplary damages of P10,000.00 plus attorney's fees of P4,
000.00. 25
In his answer to the complaint, Siason alleged that the validity of his titles to Lots 773-A and 773-B, having been passed upon by the
court in its order of September 4, 1965, had become res judicata and the Yaneses were estopped from questioning said order. 26 On
their part, the Alvarez stated in their answer that the Yaneses' cause of action had been "barred by res judicata, statute of limitation
and estoppel." 27
In its decision of July 8, 1974, the lower court found that Rodolfo Siason, who purchased the properties in question thru an agent as
he was then in Mexico pursuing further medical studies, was a buyer in good faith for a valuable consideration. Although the Yaneses
were negligent in their failure to place a notice of lis pendens "before the Register of Deeds of Negros Occidental in order to protect
their rights over the property in question" in Civil Case No. 5022, equity demanded that they recover the actual value of the land
because the sale thereof executed between Alvarez and Siason was without court approval. 28 The dispositive portion of the decision
states:
IN VIEW OF THE FOREGOING CONSIDERATION, judgment is hereby rendered in the following manner:
A. The case against the defendant Dr. Rodolfo Siason and the Register of Deeds are (sic) hereby dismmissed,
B. The defendants, Laura, Flora and Raymundo, all surnamed Alvarez being the legitimate children of the deceased Rosendo Alvarez
are hereby ordered to pay jointly and severally the plaintiffs the sum of P20,000.00 representing the actual value of Lots Nos. 773-A
and 773-B of Murcia Cadastre, Negros Occidental; the sum of P2,000.00 as actual damages suffered by the plaintiff; the sum of
P5,000.00 representing moral damages and the sum of P2.000 as attorney's fees, all with legal rate of interest from date of the filing of
this complaint up to final payment.
C. The cross-claim filed by the defendant Dr. Rodolfo Siason against the defendants, Laura, Flora and Raymundo, all surnamed
Alvarez is hereby dismissed.
D. Defendants, Laura, Flora and Raymundo, all surnamed Alvarez are hereby ordered to pay the costs of this suit.
SO ORDERED. 29
The Alvarez appealed to the then Intermediate Appellate Court which in its decision of August 31, 1983 30 affirmed the lower court's
decision "insofar as it ordered defendants-appellants to pay jointly and severally the plaintiffs-appellees the sum of P20,000.00
representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental, and is reversed

insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees,
respectively." 31 The dispositive portion of said decision reads:
WHEREFORE, the decision appealed from is affirmed insofar as it ordered defendants-appellants to pay jointly and severally the
plaintiffs- appellees the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of
Murcia, Negros Occidental, and is reversed insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual
damages, moral damages and attorney's fees, respectively. No costs.
SO ORDERED. 32
Finding no cogent reason to grant appellants motion for reconsideration, said appellate court denied the same.
Hence, the instant petition. ln their memorandum petitioners raised the following issues:
1. Whethere or not the defense of prescription and estoppel had been timely and properly invoked and raised by the petitioners in the
lower court.
2. Whether or not the cause and/or causes of action of the private respondents, if ever there are any, as alleged in their complaint
dated February 21, 1968 which has been docketed in the trial court as Civil Case No. 8474 supra, are forever barred by statute of
limitation and/or prescription of action and estoppel.
3. Whether or not the late Rosendo Alvarez, a defendant in Civil Case No. 5022, supra and father of the petitioners become a privy
and/or party to the waiver (Exhibit 4-defendant Siason) in Civil Case No. 8474, supra where the private respondents had unqualifiedly
and absolutely waived, renounced and quitclaimed all their alleged rights and interests, if ever there is any, on Lots Nos. 773-A and
773-B of Murcia Cadastre as appearing in their written manifestation dated November 6, 1962 (Exhibits "4" Siason) which had not
been controverted or even impliedly or indirectly denied by them.
4. Whether or not the liability or liabilities of Rosendo Alvarez arising from the sale of Lots Nos. 773-A and 773-B of Murcia Cadastre to
Dr. Rodolfo Siason, if ever there is any, could be legally passed or transmitted by operations (sic) of law to the petitioners without
violation of law and due process . 33
The petition is devoid of merit.
As correctly ruled by the Court of Appeals, it is powerless and for that matter so is the Supreme Court, to review the decision in Civil
Case No. 5022 ordering Alvarez to reconvey the lots in dispute to herein private respondents. Said decision had long become final and
executory and with the possible exception of Dr. Siason, who was not a party to said case, the decision in Civil Case No. 5022 is the
law of the case between the parties thereto. It ended when Alvarez or his heirs failed to appeal the decision against them. 34
Thus, it is axiomatic that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, so long as it
remains unreversed, it should be conclusive upon the parties and those in privity with them in law or estate. 35 As consistently ruled by
this Court, every litigation must come to an end. Access to the court is guaranteed. But there must be a limit to it. Once a litigant's right
has been adjudicated in a valid final judgment of a competent court, he should not be granted an unbridled license to return for
another try. The prevailing party should not be harassed by subsequent suits. For, if endless litigation were to be allowed,
unscrupulous litigations will multiply in number to the detriment of the administration of justice. 36
There is no dispute that the rights of the Yaneses to the properties in question have been finally adjudicated in Civil Case No. 5022. As
found by the lower court, from the uncontroverted evidence presented, the Yaneses have been illegally deprived of ownership and
possession of the lots in question. 37 In fact, Civil Case No. 8474 now under review, arose from the failure to execute Civil Case No.
5022, as subject lots can no longer be reconveyed to private respondents Yaneses, the same having been sold during the pendency
of the case by the petitioners' father to Dr. Siason who did not know about the controversy, there being no lis pendens annotated on
the titles. Hence, it was also settled beyond question that Dr. Siason is a purchaser in good faith.
Under the circumstances, the trial court did not annul the sale executed by Alvarez in favor of Dr. Siason on November 11, 1961 but in
fact sustained it. The trial court ordered the heirs of Rosendo Alvarez who lost in Civil Case No. 5022 to pay the plaintiffs (private
respondents herein) the amount of P20,000.00 representing the actual value of the subdivided lots in dispute. It did not order
defendant Siason to pay said amount. 38
As to the propriety of the present case, it has long been established that the sole remedy of the landowner whose property has been
wrongfully or erroneously registered in another's name is to bring an ordinary action in the ordinary court of justice for reconveyance
or, if the property has passed into the hands of an innocent purchaser for value, for damages. 39 "It is one thing to protect an innocent
third party; it is entirely a different matter and one devoid of justification if deceit would be rewarded by allowing the perpetrator to
enjoy the fruits of his nefarious decided As clearly revealed by the undeviating line of decisions coming from this Court, such an
undesirable eventuality is precisely sought to be guarded against." 40
The issue on the right to the properties in litigation having been finally adjudicated in Civil Case No. 5022 in favor of private
respondents, it cannot now be reopened in the instant case on the pretext that the defenses of prescription and estoppel have not
been properly considered by the lower court. Petitioners could have appealed in the former case but they did not. They have therefore

foreclosed their rights, if any, and they cannot now be heard to complain in another case in order to defeat the enforcement of a
judgment which has longing become final and executory.
Petitioners further contend that the liability arising from the sale of Lots No. 773-A and 773-B made by Rosendo Alvarez to Dr. Rodolfo
Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after his death.
Such contention is untenable for it overlooks the doctrine obtaining in this jurisdiction on the general transmissibility of the rights and
obligations of the deceased to his legitimate children and heirs. Thus, the pertinent provisions of the Civil Code state:
Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the
inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.
Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.
Art. 1311. Contract stake effect only between the parties, their assigns and heirs except in case where the rights and obligations
arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the
value of the property received from the decedent.
As explained by this Court through Associate Justice J.B.L. Reyes in the case of Estate of Hemady vs. Luzon Surety Co., Inc. 41
The binding effect of contracts upon the heirs of the deceased party is not altered by the provision of our Rules of Court that money
debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The
reason is that whatever payment is thus made from the state is ultimately a payment by the heirs or distributees, since the amount of
the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive.
Under our law, therefore. the general rule is that a party's contractual rights and obligations are transmissible to the successors.
The rule is a consequence of the progressive "depersonalization" of patrimonial rights and duties that, as observed by Victorio Polacco
has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has
evolved into a relation from patrimony to patrimony with the persons occupying only a representative position, barring those rare cases
where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person
and by no other.
xxx xxx xxx
Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal consequences of their father's transaction, which
gave rise to the present claim for damages. That petitioners did not inherit the property involved herein is of no moment because by
legal fiction, the monetary equivalent thereof devolved into the mass of their father's hereditary estate, and we have ruled that the
hereditary assets are always liable in their totality for the payment of the debts of the estate. 42
It must, however, be made clear that petitioners are liable only to the extent of the value of their inheritance. With this clarification and
considering petitioners' admission that there are other properties left by the deceased which are sufficient to cover the amount
adjudged in favor of private respondents, we see no cogent reason to disturb the findings and conclusions of the Court of Appeals.
WHEREFORE, subject to the clarification herein above stated, the assailed decision of the Court of Appeals is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.

G.R. No. L-4170

January 31, 1952

Intestate of the late AGUSTIN MONTILLA, SR.; PEDRO LITONJUA, a movant-appellant,

vs.
AGUSTIN B. MONTILLA, JR., administrator-appellee;
CLAUDIO MONTILLA, oppositor-appellee.
Carlos
Hilado
and
Jose
V.
Corua
Jose M. Estacion for movant. Gaudencio Occeo and Jose Ur. Carbonell for oppositor.
PARAS, C.J.:

for

the

administrator.

In Civil Case No. 868 of the court of First Instance of Negros Occidental, Pedro L. Litonjua obtained a judgment against Claudio
Montilla for the payment of the sum of P4,000 with legal interest, plus costs amounting to P39.00 In due time, a writ of execution was
issued, but no property of Claudio Montilla was found which could be levied upon.
On June 12, 1950 Pedro L. Litonjua filed in special Proceeding No 32 of the Court of First Instance of Negros Occidental, Intestate
Estate of Agustin Montilla, Sr., deceased, a motion praying that the interest, property and participation of Claudio Montilla, one of the
heirs of Agustin Montilla, Sr., in the latter's intestate estate be sold and out of the proceed the judgment debt of Claudio Montilla in
favor of Pedro L. Litonjua be paid. This motion was opposed by Claudio Montilla and by Agustin Montilla, Jr., administrator of the
intestate estate.
On August 7, 1950, the Court of First Instance of Negros Occidental issued an order denying the motion. From this order Pedro L.
Litonjua appealed. In the case of Ortiga Brothers and Co. vs. Enage and Yap Tico, 18 Phil. 345, it was held that the creditor of the
heirs of a deceased person is entitled to collect his claim out of the property which pertains by inheritance to said heirs, only after the
debts of the testate or intestate succession have been paid and when the net assets that are divisible among the heirs are known,
because the debts of the deceased must first be paid before his heirs can inherit. It was therein also held that a person who is not a
creditor of a deceased, testate or intestate, has no right to intervene either in the proceedings brought in connection with the estate or
in the settlement of the succession. We quote hereunder pertinent passages of the decision.
A person who, having claim against a deceased person which should be considered by the committee does not, after publication of
the required notice, exhibit his claim to the committee as provided by law, shall be barred from recovering such demand or from
pleading the same as an offset to any action, under the provisions of section 695 of the Code of Civil Procedure, excepting the case
referred to in section 701 of the same; with still less reason can one who is not a creditor of the said deceased intervene in the
proceedings relative to the latter's intestate estate and to the settlement of his succession (article 1034 of the Civil Code), because
such creditor has no right or interest that call for the protection of the law and the courts, except in any remainder which may be found
due the heir.
It is true that Yap Tico, as the creditor of the widow and heirs of the deceased Ildefonso, is entitled to collect what is due him out of the
property left by the latter and which was inherited by such widow and heirs, but it is no less that only after all the debts of the said
estate have been paid can it be known what net remainder will be left for division among the heirs, because the debts of the deceased
must be paid before his heirs can inherit. (Arts. 659 et seq. 1026, 1027, and 1032 of the civil Code, and secs. 734 et seq., Code of
Civil Code Procedure.)
An execution cannot legally be levied upon the property of an intestate succession to pay the debts of the widow and heirs of the
deceased, until the credits held against the latter at the time of his death shall have been paid can the remaining property that pertains
to the said debtors heirs can be attached (Art. 1034, aforecited, Civil Code.) (pp. 350-251)
The foregoing pronouncements are perfectly applicable to the case at bar, because the appellant is not a creditor of the deceased
Agustin Montilla, Sr. and he seeks to collect his claim out of the inheritance of Claudio Montilla, an heir, before the net assets of the
intestate estate have been determined.
Wherefore, the appealed order is affirmed, and it is so ordered with costs against the appellant.
Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo, JJ., concur.

G.R. No. L-24434

January 17, 1968

HEIRS OF PEDRO REGANON, JOVENCIA REGANON, MENCIA REGANON, JOSEFA REGANON, VIOLETA REGANON, and
FLORA REGANON, plaintiffs-appellees,
vs.
RUFINO IMPERIAL, defendant-appellant.
Torcuato L. Galon for plaintiffs-appellees.
V. Lacaya for defendant-appellant.
BENGZON, J.P., J.:
This is an appeal from the orders dated June 9, 1964, July 14, 1964 and August 11, 1964, respectively, of the Court of First Instance of
Zamboanga del Norte (Dipolog, Branch II).
The facts of the case are admitted by both parties.
On February 22, 1963, the heirs of Pedro Reganon filed a complaint for recovery of ownership and possession of about one-hectare
portion of a parcel of land (Lot No. 1 or Lot No. 4952, situated at Miasi, Polanco, Zamboanga del Norte, covered by O.T.C. No. 1447,
with an area of 7.9954 hectares), with damages, against Rufino Imperial.

Defendant not having filed an answer within the reglementary period, the plaintiffs on April 8, 1963 filed a motion to declare the former
in default. The trial court granted the motion in its order dated April 10, 1963.
On April 23, 1963, the plaintiffs presented their evidence ex parte before the Clerk of Court acting as Commissioner. The court a
quo on May 6, 1963, rendered a decision declaring the plaintiffs lawful owners of the land in question and entitled to its peaceful
possession and enjoyment; ordering defendant immediately to vacate the portion occupied by him and to restore the peaceful
possession thereof to plaintiffs; and sentencing defendant to pay plaintiffs the amount of P1,929.20 and the costs.
On November 29, 1963, the plaintiffs filed a motion for issuance of a writ of execution. This was granted by the trial court in its order of
December 9, 1963.
The Deputy Provincial Sheriff submitted on February 8, 1964 a sheriff's return of proceedings reporting the garnishment and sale of a
carabao and goat belonging to defendant for P153.00, and the attachment and sale of defendant's parcel of land covered by Tax
Declaration No. 4694, situated in Sicet, Polanco, Zamboanga del Norte, for P500.00 both sales having been made to the only
bidder, plaintiffs' counsel Atty. Vic T. Lacaya.
On March 13, 1964, the Philippine National Bank deposited in the Philippine National Bank-Dipolog Branch the residuary estate of its
former ward, Eulogio Imperial, in the sum of P10,303.80, pursuant to an order of Branch I of the Court of First Instance of Zamboanga
del Norte in Sp. Proc. No. R-145.
On May 25, 1964, the heirs of said Eulogio Imperial, one of whom is defendant, executed a Deed of Extrajudicial Partition of the
residuary estate, wherein was apportioned P1,471.97 as defendant Rufino Imperial's share.
Informed of this development, the plaintiffs filed on June 5, 1964 an ex parte motion for issuance of an alias writ of execution and of an
order directing the manager, or the representative, of the Philippine National Bank-Dipolog Branch, to hold the share of defendant and
deliver the same to the provincial sheriff of the province to be applied to the satisfaction of the balance of the money judgment. This
was granted by the trial court (Branch II) in its order dated June 9, 1964.
On June 17, 1964, the Deputy Provincial Sheriff issued a sheriffs notification for levy addressed to defendant, giving notice of the
garnishment of the rights, interests, shares and participation that defendant may have over the residuary estate of the late Eulogio
Imperial, consisting of the money deposited in the Philippine National Bank-Dipolog Branch.
Defendant, through counsel, appearing for the first time before the trial court, on June 24, 1964 filed a motion for reconsideration of
the order dated June 9, 1964, and to quash the alias writ of execution issued pursuant to it, to which plaintiffs filed their opposition on
July 6, 1964. On July 14, 1964, the trial court denied defendant's aforesaid motion.
Defendant's second motion for reconsideration likewise having denied by the trial court in its order of August 11, 1964, defendant
appealed to Us, raising the following issues:
(1) Upon the death of a ward, is the money accumulated in his guardianship proceedings and deposited in a bank, still considered
in custodia legis and therefore cannot be attached?
(2) Is the residuary estate of a U.S. veteran, which consists in the aggregate accumulated sum from the monthly allowances given him
by the United States Veterans Administration (USVA) during his lifetime, exempt from execution?
Defendant-appellant argues that the property of an incompetent under guardianship is in custodia legis and therefore can not be
attached.
It is true that in a former case 1 it was held that property under custodia legis can not be attached. But this was under the old Rules of
Court. The new Rules of Court 2 now specifically provides for the procedure to be followed in case what is attached is in custodia
legis. 3 The clear import of this new provision is that property under custodia legis is now attachable, subject to the mode set forth in
said rule.
Besides, the ward having died, the guardianship proceedings no longer subsist:
The death of the ward necessarily terminates the guardianship, and thereupon all powers and duties of the guardian cease, except the
duty, which remains, to make a proper accounting and settlement in the probate court. 4
As a matter of fact, the guardianship proceedings was ordered conditionally closed by Branch I of the Court of First Instance of
Zamboanga del Norte in which it was pending, in its order of February 8, 1964, where it stated
In the meantime, the guardian Philippine National Bank is hereby directed to deposit the residuary estate of said ward with its bank
agency in Dipolog, this province, in the name of the estate of the deceased ward Eulogio Imperial, preparatory to the eventual
distribution of the same to the heirs when the latter shall be known, and upon proof of deposit of said residuary estate, the guardian
Philippine National Bank shall forthwith be relieved from any responsibility as such, and this proceeding shall be considered closed
and terminated. 5

And the condition has long been fulfilled, because on March 13, 1964 the Philippine National Bank-Manila deposited the residuary
estate of the ward with the Philippine National Bank-Dipolog Branch, evidenced by a receipt attached to the records in Sp. Proc. No.
R-145. 6
When Eulogio Imperial died on September 13, 1962, the rights to his succession from the moment of his death were transmitted
to his heirs, one of whom is his son and heir, defendant-appellant herein. 7 This automatic transmission can not but proceed with
greater ease and certainty than in this case where the parties agree that the residuary estate is not burdened with any debt. For,
The rights to the succession of a person are transmitted from the moment of death, and where, as in this case, the heir is of legal age
and the estate is not burdened with any debts, said heir immediately succeeds, by force of law, to the dominion, ownership, and
possession of the properties of his predecessor and consequently stands legally in the shoes of the latter. 8
That the interest of an heir in the estate of a deceased person may be attached for purposes of execution, even if the estate is in the
process of settlement before the courts, is already a settled matter in this jurisdiction. 9
It is admitted that the heirs of Eulogio Imperial, including herein defendant-appellant, have on May 25, 1964 executed a Deed of
Extrajudicial Partition. This instrument suffices to settle the entire estate of the decedent provided all the requisites for its validity are
fulfilled 10 even without the approval of the court. Therefore, the estate for all practical purposes have been settled. The heirs are at
full liberty to withdraw the residuary estate from the Philippine National Bank-Dipolog Branch and divide it among themselves. The
only reason they have not done so is because of the alleged illegal withdrawal from said estate of the amount of P1,080.00 by one
Gloria Gomez by authority of Branch I of the Court of First Instance of Zamboanga del Norte, which incident is now on appeal before
the Court of Appeals. This appeal, however, does not detract any from the fact that the guardianship proceedings is closed and
terminated and the residuary estate no longer under custodia legis.
Finally, it is defendant-appellant's position that the residuary estate of Eulogio Imperial, a former U.S. veteran, having been set aside
from the monthly allowances given him by the United States Veterans Administration (USVA) during his lifetime, is exempt from
execution.
Any pension, annuity, or gratuity granted by a Government to its officers or employees in recognition of past services rendered, is
primordially aimed at tiding them over during their old age and/or disability. This is therefore a right personalissima, purely personal
because founded on necessity. It requires no argument to show that where the recipient dies, the necessity motivating or underlying its
grant necessarily ceases to be. Even more so in this case where the law 11 providing for the exemption is calculated to benefit U.S.
veterans residing here, and is therefore merely a manifestation of comity.
Besides, as earlier stated, the heirs of Eulogio Imperial, one of whom is appellant, have already executed a Deed of Extrajudicial
Partition the end result of which is that the property is no longer the property of the estate but of the individual heirs. And it is settled
that:
When the heirs by mutual agreement have divided the estate among themselves, one of the heirs can not therefore secure the
appointment of an administrator to take charge of and administer the estate or a part thereof. The property is no longer the property of
the estate, but of the individual heirs, whether it remains undivided or not. 12
WHEREFORE, the orders appealed from are hereby affirmed, with costs against defendant-appellant. So ordered.1wph1.t
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

G.R. No. L-45320

January 26, 1939

Intestate estate of the deceased Macario Carrillo.

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

(6) Out of love for her late husband, Macario Carrillo, the party of the first part (Rosenda Almeida) undertakes to pay the expenses of
the last illness of the decedent, such as medicine, physician's fees and nurses; cost of the funeral and the care of the tomb.
Sometime in January, 1963, the appellee built a mausoleum in Bian, Province of Laguna, for the remains of her late husband. Shortly
before the expiration of the period of five years for the exhumation of said remains, the appellants secured the consent of the appellee
to have the remains of the deceased transferred to the Ermita Church in Manila. As we was made to understand that such transfer
would only be a temporary and that it would be easier to transfer the remains from that place to the mausoleum, which she had built in
Bian, the appellee gave her consent. Having been informed by her lawyer that she should not have given her consent, she withdrew
it, and inasmuch as the appellants were about to remove and transfer the remains, the appellee moved the court to enjoin the
appellants from removing the remains to the Ermita Church. The motion was duly heard and thereafter the court made permanent the
preliminary injunction which had been issued, and ordered the appellants to abstain from removing the remains of the deceased and
transferring them to another place. Thereupon, the appeal was perfected.
The only question raised in the three assignments of error made by the appellants, is whether or not they have a better right than the
appellee to disinter the remains of the deceased and transfer them to the place they had chosen. The court held that the appellee's
right, as the widow, is preferred, as may be gathered from the spirit of section 1103 of the Revised Administrative Code and from some
American cases. We hold that the court correctly decided the case and did not commit any of the assigned errors.
In this jurisdiction there is no express law which determines the preference, among the next of kin of a deceased, with regard to the
disposition of his remains.
Leaving aside for the moment the law upon the matter and the American cases, to which we will later on refer, we believe that the
agreement between the parties is decisive of the controversy. The parties agreed in the partition approved by the court that the widow,
the appellee, out of love for her late husband, would undertake the care of his tomb. The word tomb, which in this case means the
grave where the body of the deceased was buried, for at the time of the partition-agreement Macario Carrillo had already died, has
been used without any restriction or limitation, and it should be interpreted as meaning both the grave at the North Cemetery and that
which might be determined after the five-year period for the conservation of the remains of the deceased. If the intention of the parties
referred only to the burial of the deceased in the North Cemetery for five years, which is the maximum period allowed by law, this idea
could have been easily expressed.
We hold, then, that under the terms of said agreement, the appellee has a better right than the appellants, and the latter cannot object
to the transfer of the remains of the deceased by the appellee to the mausoleum she built in Bian, Laguna.
The appellants allege that the appellee consented to the transfer of the remains to the Ermita Church and that now she cannot validly
oppose it. We find no merit in this contention because it appears that the appellee erroneously gave her consent, for she was made to
believe by the appellants that the transfer of the remains to the Ermita Church would only be temporary, and that her consent thereto
would facilitate the subsequent transfer to the mausoleum in Bian.
In this jurisdiction there is no law that expressly determines the right care, possession and disposition of the remains of the deceased.
Section 1103 of the Revised Administrative Code of 1917, quoted by the court, provides that the obligation to bury the remains of a
deceased, falls, firstly, on the surviving spouse; if the deceased was not married, the obligation falls upon the closest next of kin; and if
he dies with no surviving relative, the burial is the concern of the authorities of the municipality where he died. This legal provision has
no direct application to the controversy, for the simple reason that it refers to the burial of a dead body, which he is not the case here.
However, it is being mentioned merely to point out that even in the case the right of the surviving spouse is considered preferred and
superior to that of the next of kin. In the United States of America the superior and preferred right of the surviving spouse to the burial
and any other legal disposition of the remains of the husband or of the wife, has always been held undisputed. "It is generally
conceded that on the death of a husband or a wife, the primary and paramount right to possession of the body and to control the burial
or other legal disposition thereof is in the surviving spouse, and not in the next of kin, at least in the absence of a different provision by
the deceased." (15 Am. Jur., par. 9, p. 834; Southern L. & Health Ins. Co. vs. Morgan, 21 Ala. App., 5; 105 So., 161; Enos vs. Snyder,
131 Cal., 68; 63 Pac., 170; O'Donnell vs. Slack, 123 Cal., 285; 55 Pac., 906; Boyle vs. Chandler, 33 Del., 323; 138 A., 273; Louisville
& N. R. Co. vs. Wilson, 123 Ga., 62; 51 S. E., 24; Anderson vs. Acheson, 132 Iowa, 744; 110 N. W., 335.) "The surviving spouse is
entitled to select the place of burial and the place of reinterment if the remains are removed after burial." (15 Am. Jur., par. 9, p. 834.)
"The better rule seems to be, however, that if the widow has not waived her right, she may, against the objections of the next of kin,
remove her husband's body, after interment, to another place of sepulture." (15 Am. Jur., par. 21, p. 843; Bunol vs. Bunol, 12 La App.,
675; 127 So., 70; Hackett vs. Hackett, 19 L. R. A., 558; 49 Am. St. Rep., 762.)
For the foregoing reasons, the appealed order is affirmed, with costs in this instance against the appellants. So ordered.
Avancea, C.J., Villa-Real, Diaz, Laurel, Concepcion, and Moran, JJ., concur

G.R. No. L-4963

January 29, 1953

MARIA USON, plaintiff-appellee,

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

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.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.

G.R. No. L-28611

January 30, 1929

ILDEFONSO DE LA ROSA, and GO KEE, plaintiffs-appellees,

vs.
FRANCISCO DE BORJA, defendant-appellant.
Sumulong, Lavides and Hilado for appellant.
Crispin Oben for appellees.
OSTRAND, J.:
Over ten years ago, Ildefonso de la Rosa, in his capacity as administrator of the estate of the deceased Go Lio, brought an action in
the Court of First Instance of Nueva Ecija against one Enrique Go Cotay for the liquidation and partition of a partnership alleged to
have been formed by Go Lio and the also deceased Go Cosing, the father of Go Cotay. After the death of the original partners, Go
Cotay took possession of the property of the partnership and assumed the management of its affairs. Go Cotay denied the existence
of the partnership, but upon trial the Court of First Instance, on July 20, 1918, rendered a decision declaring that the business relations
between Go Lio Go Cosing were that of a true partnership and held that the estate of Go Lio was entitled to one-half of the net assets
of said partnership. The court further ordered the liquidation of the partnership for the purpose of distributing its assets.
Thereafter, the trial court, on motion of the plaintiff, appointed a receiver to take charge of the property in question, but on his own
representations, Go Cotay was intrusted with the care of the property in controversy upon the filing of a bond in the sum of P10,000.
Three years later, the parties to the original action presented the following stipulations in writing to the trial court:
AGREEMENT
Both parties through their respective counsel, submit the following agreement to the honorable court:
That the case be forwarded to the Supreme Court upon the defendant's appeal, in its present state, suspending the liquidation
proceedings ordered in the appealed judgment; defendant to remain in possession of the property in controversy upon giving a bond
in favor of the plaintiff in the sum of twenty-five thousand pesos (P25,000), Philippine currency, which must be filed within a period of
twenty, (20) days from this date, in order to answer for the execution of the judgment to be rendered fixing the plaintiff's participation in
the property in question, should the latter be affirmed by the Supreme Court, it being understood that the former bond of P10,000 is
hereby cancelled.
Both parties so submit it, and respectfully pray the honorable court to approve this agreement, issuing orders in pursuance thereof.
Cabanatuan, Nueva Ecija, December 7, 1921.
In accordance with the terms of the stipulation, Go Cotay furnished a bond for P25,000, which reads as follows:
PHILIPPINE ISLANDS, PROVINCE OF NEUVA ECIJA, CABANATUAN
Whereas in an action pending before the Court of First Instance of the Province of Nueva Ecija, Sixth District, Philippine Islands,
wherein Ildefonso de la Rama, administrator of the intestate estate of Go Lio, deceased, is plaintiff, and Enrique Ortega Go Cotay
defendant, the said defendant has applied to be receiver of the property of this complaint.
And whereas the law gives security to the plaintiff.
Now therefore, know all men by these presents:
That Enrique Go Cotay, of San Isidro, Nueva Ecija as principal obligor, and Francisco de Borja, of Santa Rosa, Nueva Ecija, Santiago
Lucero, of Cabanatuan, Nueva Ecija, and Antonio Vallarta, of San Isidro, Nueva Ecija, as sureties, do hereby acknowledge themselves
bound jointly and severally to the said plaintiff Ildefonso de la Rosa, administrator of the estate of the deceased Go Lio, in the sum of
twenty-five thousand pesos (P25,000), to the faithful payment of which we, our heirs, and our legal representatives, are really and truly
and jointly and severally bound.
The conditions of this obligation are as follows:
To answer for the payment of the damages which Enrique Go Cotay as receiver of the store for the purchase and sale of sundry
mercantile goods, abandonment and any other inexcusable cause, may come to the aforesaid objects contained in the complaint, of
which he is the receiver.
In which case, this obligation shall become null and void; otherwise, it shall remain in full force effect.

(Sgd.)
Principal Obligor

ENRIQUE

GO

COTAY

The bond was signed on January 13, 1922, by Francisco Borja, Santiago Lucero, and Antonio Villarta as sureties.
The appeal referred to in the aforesaid stipulations was dismissed by this court on the ground that the liquidation of the affairs of the
partnership was not completed.1 Upon the return of the record to the Court of First Instance of Nueva Ecija, the proceedings in the
liquidation were renewed. In the meantime Go Cotay continued as a common law receiver, and on December 13, 1924, the Court of
First Instance issued an order in which it was recite that all of the property of the partnership had disappeared, due to losses sustained
during the period from 1918 until 1922 and that therefore, the plaintiff could recover nothing from the defendant. From that order both
parties appealed to this court, the plaintiff appealing from the order of December 13, 1924, in which it was declared that the
partnership had no assets. The defendant appealed from the decision of July 20, 1918, in which it was declared that the partnership
existed and that the estate of Go Lio was entitled to one-half of the property in question. This court, in a decision dated January 15,
1926, affirmed the decision of the 20th of July, 1918, and reversed the order of December 13, 1924. 2 The court further held that while
Go Cotay was a manager of the partnership prior to August 3, 1918, he must be classified as a receiver (depositario) subsequent to
that date and, consequently, was responsible for the losses during that receivership, which losses amounted to the sum of
P60,598.28; that the losses were due to the fact that Go Cotay continue the business of the partnership while it was in liquidation; that
the continuation of the business after he had been appointed receiver was not authorized by the court and that he, therefore, was
bound to indemnify the estate of Go Lio for one-half of the losses incurred during that period.
After the case was returned to the Court of First Instance, that court, upon motion of the administrator De la Rosa, appointed Go Kee,
one of the sons and heirs of Go Lio, coadministrator of the estate. Thereafter, a writ of execution of the judgment of the Supreme Court
was issued against Go Cotay but was returned unsatisfied by the sheriff, who was unable to find any property belonging to the
partnership or to Go Cotay himself. In viewing of this fact, the plaintiff filed a motion praying the Court of First Instance to issue
execution against the herein defendant, Francisco de Borja, as one of the joint and several sureties on the bond hereinbefore set forth,
but under the date of July 12, 1926, said court denied the motion on the ground that the sureties were liable only for the damages
caused through the fault, negligence or abandonment of Go Cotay in his capacity as receiver of the partnership property and that the
existence of such damages had not been shown. The plaintiff thereupon filed a petition with the Supreme Court for a writ
of mandamus to compel the Judge of the Court of First Instance to issue the writ of execution prayed for, but following the decision in
the case of De la Riva vs. Molina Salvador (32 Phil., 277), the Supreme Court denied the petition 3 on the ground that damages in
question were not for unlawful appointment of a receiver, but for the receiver's mismanagement, and that, therefore, the liability of the
sureties on the bond could only be enforced by a separate action and not only by a mere motion in the receivership proceedings.
In conformity with the indications in the order quote, the administrators of the estate of Go Lio brought the present action upon the
aforesaid bond against Francisco de Borja, the sole surviving surety. The venue was laid in Manila, the coadministrator Go Kee
alleging that he was a resident of that city. In their complaint the plaintiffs set forth the essential facts and prayed that the defendant be
ordered to pay the full amount of the bond, P25,000. The defendant, in his answer, pleaded the general issue and set up as special
defenses (1) that Go Cotay was never appointed receiver and was only left in possession of the partnership property upon the filing of
the bond referred to; (2) that as surety on the bond in question, he did not undertake to respond for all the acts of Go Cotay but that
his liability is limited to that set forth in the penultimate clause of the bond, viz., "to answer for the payment of the damages which
Enrique Go Cotay as receiver of the store for the purchase and sale of sundry mercantile goods, abandonment and any other
inexcusable cause, may come to the aforesaid objects contained in the complaint, of which he is the receiver;" (3) that the bond was
not renewed after the appeal referred to in the stipulations of December 7, 1921, had been finally determined by the Supreme Court
and that therefore the bond had lost its force and effect; and (4) that the decision of the Court of First Instance of Nueva Ecija dated
July 12, 1926, is res judicata. The defendant also set up a counterclaim for the sum of P8,000 as damages caused by the institution of
this action.
Upon trial the Court of First Instance of Manila dismissed the defendant's counterclaim and rendered judgment in favor of the plaintiffs
for the sum of P25,000, with legal interest from the date of the filing of the complaint and for the costs. From this judgment the
defendant appealed.
Under his first assignment of error, the appellant argues in substance that the bond in question purports to be the bond of a receiver;
that the principal Go Cotay never was appointed receiver for the property and affairs of the partnership; that there therefore was no
valid principal obligation; and that consequently under the provisions of article 1824 of the Civil Code, there could be no valid bond.
This argument seems far-fetched and may be answered in very few words. It is true that the principal Go Cotay was formally
appointed receiver in equity, but he virtually assumed the obligation of a common law receiver and as such was bound to account for
the assets of the partnership placed under his care. That obligation was perfectly valid and it was no error to require a bond for its
fulfillment. It is true that the court had no power to compel the execution of the bond, but it had the power to appoint a receiver in
equity, and if Go Cotay chose to give the bond rather than to submit to such a receivership, he is bound by such bond and, together
with his sureties, must take the consequences. As stated in the standard work of High on Receivers, 4th ed., par. 124:
Where, upon a bill in equity to enforce an interest in a trust fund and for a receiver pendente lite, the court refuses to appoint a
receiver, upon condition of defendant executing a bond to account as receiver for all goods and money which have come into his
possession, and to pay them over pursuant to the decree of the court, such a bond will be deemed good as a common-law obligation.
And the obligor, although not considered as a receiver or officer of the court, stands in the light of one who, for a personal
accommodation, has assumed a legal responsibility, and after receiving the benefits of the obligation he is stopped from denying its
legality.
Appellant's second, third and fourth assignments of error deal with the nature and extent of the liability of the defendant as surety on
the bond. It is argued that under the terms of the bond, the defendant can only be held responsible for negligence and abandonment

on the part of the principal; that no such negligence or abandonment has been shown; and that there is no proof of looses
subsequently to the execution of the bond.
At first blush, this argument may seem rather plausible, but upon further consideration, this impression vanishes. While the principal
Go Cotay was not formally named receiver, it is evident from the bond itself, as well as from the previous stipulations, that he assumed
a receiver's responsibility for the care and conversation of the property left in his possession and that responsibility was not confined to
acts of negligence or abandonment on his part; "any other inexcusable cause" would render him liable, and no excuse has been
offered for his failure to account for the property and assets in his possession and under his control. The losses may have been due to
unfortunate business ventures, but acting in the place of a receiver, Go Cotay had no authority or right to use the assets of the
partnership for that purpose and misfortunes of that character can, therefore, not serve as excuses.
As to the amount of the plaintiff's recovery, it is to be observed that shortly before the execution of the bond and after Go Cotay had
entered upon his common law receivership, the plaintiffs share of the net assets of the partnership were valued at over P30,000, and
the presumption is that this condition continue until the contrary was shown (Torres vs. Genato, 7 Phil. 204). The fact that a bond of as
much as P25,000 was given strengthens this presumption and indicates that the disappearance of the property must have occurred
after the bond was execute.
The fifth assignment of error relates to the effect of the order of July 12, 1926, in which the Court of First Instance refuse to issue a writ
of execution against the herein appellant, who now contends that the conclusions contained in that order are res adjudicata. We do not
think that such is the case; in the mandamus case, this court held that in order to enforce the herein appellant's liability on the bond, a
separate action was necessary. The pronouncements of the Nueva Ecija Court can, therefore, only be regarded as obiter
dicta expressed outside of the jurisdiction of the court and therefore lacking the force of an adjudication.
The sixth assignment of error has reference to the fact that the plaintiff Go Kee, as foreign subject, was not a resident of the City of
Manila, and that, therefore, the present action was brought in a jurisdiction where neither the plaintiffs nor the defendant were residing.
There is nothing in this contention. The residence referred to in section 377 of the Code of Civil procedure need not necessarily be
permanent and the record shows that Go Kee ha his actual residence in Manila at the time the action was brought. But be this as it
may, the act remains that the defendant submitted to the jurisdiction of the Manila Court and is not properly raise the point in question
until after the judgment in the case had been rendered. Section 377 of the Code of Civil Procedure provides among other things, that
"the failure of a defendant to object to the venue of the action at the time of entering his appearance in the action shall be deemed a
waiver on his part of all objection to the place or tribunal in which the action is brought, except in the actions referred to in the first
sixteen lines of this section relating to real estate, and actions against executors, administrators, and guardians, and for the distribution
of estates and payments of legacies." As will be seen, the defendant's objection came altogether too late.
The defendant's remaining assignments of error are consequences of the foregoing assignments and need not be discussed.
The appealed judgment is, in our opinion, in accordance with the law and the facts and is affirmed with the costs against the appellant.
So ordered.
Johnson, Street, Malcolm, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.

G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their father) who represents the
minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA, AGUSTINA NERI, widow of
JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court of First Instance of Abra,respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.

MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No. 856, entitled Fortunata Barcena vs.
Leon Barcena, et al., denying the motions for reconsideration of its order dismissing the complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted
a civil action in the Court of First Instance of Abra, to quiet title over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of the motion to dismiss, the
counsel for the plaintiff moved to amend the complaint in order to include certain allegations therein. The motion to amend the
complaint was granted and on July 17, 1975, plaintiffs filed their amended complaint.

On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that Fortunata Barcena is dead and,
therefore, has no legal capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the plaintiff
confirmed the death of Fortunata Barcena, and asked for substitution by her minor children and her husband, the petitioners herein;
but the court after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party in interest and
has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the complaint and on August 23, 1975, he moved
to set aside the order of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff for lack of merit. On September 1,
1975, counsel for deceased plaintiff filed a written manifestation praying that the minors Rosalio Bonilla and Salvacion Bonilla be
allowed to substitute their deceased mother, but the court denied the counsel's prayer for lack of merit. From the order, counsel for the
deceased plaintiff filed a second motion for reconsideration of the order dismissing the complaint claiming that the same is in violation
of Sections 16 and 17 of Rule 3 of the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case No. 856 and its orders
denying the motion for reconsideration of said order of dismissal. While it is true that a person who is dead cannot sue in court, yet he
can be substituted by his heirs in pursuing the case up to its completion. The records of this case show that the death of Fortunata
Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint was filed on
March 31, 1975, Fortunata Barcena was still alive, and therefore, the court had acquired jurisdiction over her person. If thereafter she
died, the Rules of Court prescribes the procedure whereby a party who died during the pendency of the proceeding can be
substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a party to a pending case dies ... it shall be the duty of his
attorney to inform the court promptly of such death ... and to give the name and residence of his executor, administrator, guardian or
other legal representatives." This duty was complied with by the counsel for the deceased plaintiff when he manifested before the
respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of parties in the case. The
respondent Court, however, instead of allowing the substitution, dismissed the complaint on the ground that a dead person has no
legal personality to sue. This is a grave error. Article 777 of the Civil Code provides "that the rights to the succession are transmitted
from the moment of the death of the decedent." From the moment of the death of the decedent, the heirs become the absolute owners
of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the
methods provided for by law. 3 The moment of death is the determining factor when the heirs acquire a definite right to the inheritance
whether such right be pure or contingent. 4 The right of the heirs to the property of the deceased vests in them even before judicial
declaration of their being heirs in the testate or intestate proceedings. 5 When Fortunata Barcena, therefore, died her claim or right to
the parcels of land in litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon her
death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is,
therefore, no reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby extinguished, the court shall order, upon
proper notice, the legal representative of the deceased to appear and be substituted for the deceased, within such time as may be
granted ... ." The question as to whether an action survives or not depends on the nature of the action and the damage sued for. 6 In
the causes of action which survive the wrong complained affects primarily and principally property and property rights, the injuries to
the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the
property and rights of property affected being incidental. 7 Following the foregoing criterion the claim of the deceased plaintiff which is
an action to quiet title over the parcels of land in litigation affects primarily and principally property and property rights and therefore is
one that survives even after her death. It is, therefore, the duty of the respondent Court to order the legal representative of the
deceased plaintiff to appear and to be substituted for her. But what the respondent Court did, upon being informed by the counsel for
the deceased plaintiff that the latter was dead, was to dismiss the complaint. This should not have been done for under the same
Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if the legal representative fails to appear, to order the
opposing party to procure the appointment of a legal representative of the deceased. In the instant case the respondent Court did not
have to bother ordering the opposing party to procure the appointment of a legal representative of the deceased because her counsel
has not only asked that the minor children be substituted for her but also suggested that their uncle be appointed as guardian ad
litem for them because their father is busy in Manila earning a living for the family. But the respondent Court refused the request for
substitution on the ground that the children were still minors and cannot sue in court. This is another grave error because the
respondent Court ought to have known that under the same Section 17, Rule 3 of the Rules of Court, the court is directed to appoint a
guardian ad litem for the minor heirs. Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the
respondent Court that the uncle of the minors be appointed to act as guardian ad litem for them. Unquestionably, the respondent Court
has gravely abused its discretion in not complying with the clear provision of the Rules of Court in dismissing the complaint of the
plaintiff in Civil Case No. 856 and refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil Case No. 856 of the Court of First
Instance of Abra and the motions for reconsideration of the order of dismissal of said complaint are set aside and the respondent
Court is hereby directed to allow the substitution of the minor children, who are the petitioners therein for the deceased plaintiff and to
appoint a qualified person as guardian ad litem for them. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.
Footnotes
1 Which this Court treats as special civil action as per its Resolution dated February 11, 1976.
2 Section 16. Duty of Attorney upon which death, incapacity or incompetency of party. - Whenever a party to a pending case dies,
becomes incapacitated or incompetent, it shall be the duty of his attorney to inform the court promptly of such death, incapacity or
incompetency, and to give the name and residence of his executor, administrator, guardian or other legal representative.
Section 17. Death of party.After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the
legal representative of the deceased to appear and to be substituted for deceased, within a period of thirty (30) days, or within such

time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure
the appointment of a legal representative of the within a time to be specified by the court, and the representative shall immediately
appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may appoint guardianad litem for the minor heirs.
3 Buan vs. Heirs of Buan, 53 Phil. 654.
4 Ibarle vs. Po, 92 Phil. 721.
5 Morales, et al. vs. Ybanez, 98 Phil. 677.
6 Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT 529, 46 L. ed. 739.
7 Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39 C.C.A. 79.