E.

Object of Succession
Articles 776, 781, 1311, 1429, 1178, 1347
Article 108 RPC
CC Article 776. The inheritance includes all the property,
rights and obligations of a person which are not extinguished
by his death. (659)
Article 781. The inheritance of a person includes not only the
property and the transmissible rights and obligations existing
at the time of his death, but also those which have accrued
thereto since the opening of the succession. (n)
Article 1311. Contracts take 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 he received from
the decedent.
If a contract should contain some stipulation in favor of a third
person, he may demand its fulfillment provided he
communicated his acceptance to the obligor before its
revocation. A mere incidental benefit or interest of a person
is not sufficient. The contracting parties must have clearly and
deliberately conferred a favor upon a third person. (1257a)
Article 1429. When a testate or intestate heir voluntarily pays
a debt of the decedent exceeding the value of the property
which he received by will or by the law of intestacy from the
estate of the deceased, the payment is valid and cannot be
rescinded by the payer.
Article 1178. Subject to the laws, all rights acquired in virtue
of an obligation are transmissible, if there has been no
stipulation to the contrary. (1112)
Article 1347. All things which are not outside the commerce
of men, including future things, may be the object of a
contract. All rights which are not intransmissible may also be
the object of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be the
object of a contract. (1271a)
RPC Article 108. Obligation to make restoration, reparation
for damages, or indemnification for consequential damages
and actions to demand the same; Upon whom it devolves. The obligation to make restoration or reparation for damages
and indemnification for consequential damages devolves
upon the heirs of the person liable.
The action to demand restoration, reparation, and
indemnification likewise descends to the heirs of the person
injured.
Reyes v CA (1954)
Petitioners: Mariano Reyes, Cesar Reyes, Leonor Reyes and
Paciencia Reyes
Respondents: CA, Ismaela Dimagiba
Summary: The natural children of the deceased in this case are
questioning the intrinsic validity of the will on the ground that his
compulsory heir cannot be one, as theirs was an illicit
relationship. SC held that as a general rule, courts in probate
proceedings are limited to pass only upon the extrinsic validity
of the will sought to be probated. There are, however, notable
circumstances wherein the intrinsic validity was first determined
as when the defect of the will is apparent on its face and the
probate of the will may become a useless ceremony if it is

intrinsically invalid. The intrinsic validity of a will may be passed

upon because practical considerations demanded it as when
there is preterition of heirs or the testamentary provisions are
doubtful legality. In this case however, There was never an open
admission of any illicit relationship. Thus, there was no need to
go beyond the face of the will.
Facts
Benedicta had been in open, continuous, exclusive and
notorious possession of the a 16,240 sq. m. unregistered parcel
of agricultural land, located at Barrio Pintog, Plaridel, Bulacan,
under a bona fide claim of ownership since 1910.
Benedicta sold the said property to Ismaela Dimagiba, her
niece, manifested by allegedly two deeds of conveyance: in
1943 and 1944.
After the death of Benedicta delos Reyes, Ismaela Dimagiba
submitted to the CFI a petition for the probate of the purported
will of her late aunt.
The will instituted Dimagiba as the sole heir of the estate.
The petition was set for hearing, and in due time, Dionisio
Fernandez, Eusebio Reyes and Luisa Reyes, and one month
later, Mariano, Cesar, Leonor and Paciencia, all surnamed
Reyes, all claiming to be the heirs of the decedent, filed
oppositions to the probate asked.
Grounds advanced for the opposition were forgery, vices of
consent of the testatrix, estoppel by laches of the proponent and
revocation of the will by two deeds of conveyance of the major
portion of the estate made by the testatrix in favor of the
proponent in 1943 and 1944.
They alleged that the property sold prior to Benedictas death
should form part of what they should inherit.
The Court ruled that said property is no longer part of the
inheritance. CA affirmed the decision of the lower court.
Issues
Did the properties form part of the inheritance, of which the heirs
are entitled to? YES
Was it proper for the heirs to question the intrinsic validity of the
will, on the ground that her compulsory heir cannot be one, as
theirs was an illicit relationship? NO
Ratio
FIRST Even if they are sold, they still form part of the object of
succession, and of the estate.
In the case at bar, the sale cannot be considered as valid as the
purpose for entering into such contract is to deprive the heirs of
their legitimes.
No consideration whatever was paid by Dimagiba on account of
the transfers, thereby rendering it even more doubtful whether
in conveying the property to her legatee.
The testatrix merely intended to comply in advance with what
she had ordained in her testament, rather than an alteration or
departure therefrom.
SECOND As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the will sought
to be probated.

There are, however, notable circumstances wherein the intrinsic

validity was first determined as when the defect of the will is
apparent on its face and the probate of the will may become a
useless ceremony if it is intrinsically invalid.
The intrinsic validity of a will may be passed upon because
practical considerations demanded it as when there is
preterition of heirs or the testamentary provisions are doubtful
legality.
In this case however, there was never an open admission of any
illicit relationship. Thus, there was no need to go beyond the face
of the will.
Guinto v Medina (1953)
Petitioners: Leon Guinto
Respondents: Santiago Medina (deceased), Dominador
Medina, et al.
Facts
Leon Guinto filed an action for forcible entry against Santiago
Medina.
Medina denied the material averments, and argued that he has
been in possession of the lot since 1921.
The Justice of the Peace ordered Medina to vacate.
Medina appealed to the CFI.
While the case for forcible entry was pending trial, Guinto
instituted reconveyance proceedings.
Santiago Medina died during the pendency of the original
appeal.
The Court ruled in favor of Guinto, but refused to render
judgment sentencing the Medinas to pay him damages.
Guinto contends that his claim for damages is one that survived
after the death of Santiago, and could be prosecuted against the
latters heirs, who are substituted in his place in both cases.
Issue:
WON Guinto is entitled to recover damages, despite the death
of Medina YES
Held:
An action for forcible entry gives rise to two remedies: recovery
of possession and of damages, but subject to only one action.
Both cannot be subjected of 2 separate actions, for to do so
would be tantamount to splitting up a single cause of action.
Such action survives despite defendants death.
The heirs of Medina are liable to pay the damages.
As they are merely substituted in the place of Santiago upon his
death, their liability is only to the extent of the value of the
property, which they might have received from the original
defendant.
F. Opening of Succession
Articles 777, 2263, 2253, 533, 1347, 1461, 130, 132, 390, 391
Articles 84, 86, FC
Article 777. The rights to the succession are transmitted from
the moment of the death of the decedent. (657a)

Article 2263. Rights to the inheritance of a person who died,

with or without a will, before the effectivity of this Code, shall
be governed by the Civil Code of 1889, by other previous
laws, and by the Rules of Court. The inheritance of those
who, with or without a will, die after the beginning of the
effectivity of this Code, shall be adjudicated and distributed in
accordance with this new body of laws and by the Rules of
Court; but the testamentary provisions shall be carried out
insofar as they may be permitted by this Code. Therefore,
legitimes, betterments, legacies and bequests shall be
respected; however, their amount shall be reduced if in no
other manner can every compulsory heir be given his full
share according to this Code. (Rule 12a)
Article 2253. The Civil Code of 1889 and other previous laws
shall govern rights originating, under said laws, from acts
done or events which took place under their regime, even
though this Code may regulate them in a different manner, or
may not recognize them. But 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 prior legislation,
provided said new right does not prejudice or impair any
vested or acquired right, of the same origin. (Rule 1)
Article 533. The possession of hereditary property is
deemed transmitted to the heir without interruption and from
the moment of the death of the decedent, in case the
inheritance is accepted.
One who validly renounces an inheritance is deemed never
to have possessed the same. (440)
Article 1347. All things which are not outside the commerce
of men, including future things, may be the object of a
contract. All rights which are not intransmissible may also be
the object of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be the
object of a contract. (1271a)
Article 1461. Things having a potential existence may be the
object of the contract of sale.
The efficacy of the sale of a mere hope or expectancy is
deemed subject to the condition that the thing will come into
existence.
The sale of a vain hope or expectancy is void. (n)
Article 130. The future spouses may give each other in their
marriage settlements as much as one-fifth of their present
property, and with respect to their future property, only in the
event of death, to the extent laid down by the provisions of
this Code referring to testamentary succession. (1331a)
Article 132. A donation by reason of marriage is not
revocable, save in the following cases:
(1) If it is conditional and the condition is not
complied with;
(2) If the marriage is not celebrated;
(3) When the marriage takes place without the
consent of the parents or guardian, as required by
law;
(4) When the marriage is annulled, and the donee
acted in bad faith;
(5) Upon legal separation, the donee being the guilty
spouse;

(6) When the donee has committed an act of

ingratitude as specified by the provisions of this
Code on donations in general. (1333a)
Article 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If
he disappeared after the age of seventy-five years, an
absence of five years shall be sufficient in order that his
succession may be opened. (n)
Article 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the
vessel or aeroplane;
(2) A person in the armed forces who has taken part
in war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not been
known for four years. (n)
FC. Article 84. If the future spouses agree upon a regime
other than the absolute community of property, they cannot
donate to each other in their marriage settlements more than
one-fifth of their present property. Any excess shall be
considered void.
Donations of future property shall be governed by the
provisions on testamentary succession and the formalities of
wills. (130a)
FC Article 86. A donation by reason of marriage may be
revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially
declared void ab initio except donations made in the
marriage settlements, which shall be governed by
Article 81;
(2) When the marriage takes place without the
consent of the parents or guardian, as required by
law;
(3) When the marriage is annulled, and the donee
acted in bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
(5) If it is with a resolutory condition and the
condition is complied with;
(6) When the donee has committed an act of
ingratitude as specified by the provisions of the Civil
Code on donations in general. (132a)
Requisites for the transmission of successional rights
1. Express will of the testator or provision of law
2. Death of the person whose property is the subject of
succession Article 43;
Article 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to which of
them died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be
no transmission of rights from one to the other. (33)
Survivorship Rules [Rule 131, Section 3(kk)]

RULE 131
Section 3. Disputable presumptions. The following
presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
(kk) That if there is a doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death
of one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have
died at the same time.
3. Acceptance of the inheritance Articles 1041-1057
Article 1041. The acceptance or repudiation of the
inheritance is an act which is purely voluntary and free. (988)
Article 1042. The effects of the acceptance or repudiation
shall always retroact to the moment of the death of the
decedent. (989)
Article 1043. No person may accept or repudiate an
inheritance unless he is certain of the death of the person
from whom he is to inherit, and of his right to the inheritance.
(991)
Article 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may
be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards
only by judicial authorization.
The right to accept an inheritance left to the poor shall belong
to the persons designated by the testator to determine the
beneficiaries and distribute the property, or in their default, to
those mentioned in article 1030. (992a)
Article 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but in
order to repudiate it, the approval of the court shall be
necessary. (993a)
Article 1046. Public official establishments can neither
accept nor repudiate an inheritance without the approval of
the government. (994)
Article 1047. A married woman of age may repudiate an
inheritance without the consent of her husband. (995a)
Article 1048. Deaf-mutes who can read and write may
accept or repudiate the inheritance personally or through an
agent. Should they not be able to read and write, the
inheritance shall be accepted by their guardians. These
guardians may repudiate the same with judicial approval.
(996a)
Article 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private
document.
A tacit acceptance is one resulting from acts by which the
intention to accept is necessarily implied, or which one would
have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do not
imply an acceptance of the inheritance if, through such acts,
the title or capacity of an heir has not been assumed. (999a)
Article 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to
a stranger, or to his co-heirs, or to any of them;

(2) If the heir renounces the same, even though

gratuitously, for the benefit of one or more of his coheirs;
(3) If he renounces it for a price in favor of all his coheirs indiscriminately; but if this renunciation should
be gratuitous, and the co-heirs in whose favor it is
made are those upon whom the portion renounced
should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted.
(1000)
Article 1051. The repudiation of an inheritance shall be made
in a public or authentic instrument, or by petition presented to
the court having jurisdiction over the testamentary or intestate
proceedings. (1008)
Article 1052. If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may petition the court
to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent
sufficient to cover the amount of their credits. The excess,
should there be any, shall in no case pertain to the renouncer,
but shall be adjudicated to the persons to whom, in
accordance with the rules established in this Code, it may
belong. (1001)
Article 1053. If the heir should die without having accepted
or repudiated the inheritance his right shall be transmitted to
his heirs. (1006)
Article 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others may
repudiate it. (1007a)
Article 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato, repudiates the
inheritance in his capacity as a testamentary heir, he is
understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge
of his being a testamentary heir, he may still accept it in the
latter capacity. (1009)
Article 1056. The acceptance or repudiation of
inheritance, once made, is irrevocable, and cannot
impugned, except when it was made through any of
causes that vitiate consent, or when an unknown
appears. (997)

an
be
the
will

Article 1057. Within thirty days after the court has issued an
order for the distribution of the estate in accordance with the
Rules of Court, the heirs, devisees and legatees shall signify
to the court having jurisdiction whether they accept or
repudiate the inheritance.
If they do not do so within that time, they are deemed to have
accepted the inheritance. (n)

Uson v Del Rosario (1953)

Petitioners: Maria Uson
Respondents: Maria del Rosario, Concepcion, Conrado,
Dominador, and Faustino, all surnamed Nebreda.
Summary: Uson wants to recover her dead husbands lands
from the common law wife and children. Defendant claims that
the NCC gave successional rights to illegit children, therefore
her children have a right over the lands. Held: Husband died in
1945, before effectivity of NCC = rights to succession are
transmitted from the moment of death (657 OCC) = Uson is the
only heir. The retroactive provision (2253) in the NCC cant take
effect since it will impair the already vested right of Uson.

facts of the case

An action for recovery of ownership and possession of 5
parcels of land in Labrador, Pangasinan, was filed by Uson
(lawful wife of Faustino) against del Rosario (common-law wife)
and her 4 children (Nebredas, all minors) before the CFI
Pangasinan. Faustino, the owner of the lands, died in 1945, and
left no other heir except his widow, Uson. Uson claims that upon
Faustinos death del Rosario took possession illegally of said
lands.
Defendants defense: on 21 Feb 1931, Uson and Faustino
executed a public doc whereby they agreed to separate as
husband & wife, and in consideration of their separation, 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.
CFI: Defendants to restore to Uson the ownership and
possession of the lands in dispute.
issue
WoN the children are entitled to a share in the lands. NO.
ratio
Faustino died prior to the effectivity of the NCC. Thus, by
virtue of Art. 657 OCC, from the moment Faustino died, the
lands passed to his only heir, Uson, his widow. The claim that
Uson relinquished her rights over the lands cannot be
entertained since future inheritance cannot be the subject of a
contract nor can it be renounced.
Defendants more relevant defense: Under the NCC
illegitimate children are given the status and rights of natural
children and are entitled to successional rights which the law
accords to them (Arts. 2265 and 287, NCC). Since these rights
were declared for the first time in the NCC, they shall be given
retroactive effect even though the event which gave rise to them
may have occurred under the prior legislation (Art. 2253 NCC).
SC: 2253 takes effect only when the new rights do not
prejudice any vested or acquired right of the same origin.
Usons right of ownership over the lands became vested in 1945
upon Faustinos death. The new right recognized by the NCC
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.
Another defense: While Faustino was dying, Uson, in a
gesture of pity or compassion, agreed to assign the lands to the
illegit children for the reason that they were acquired while
Faustino was living with their mother, and that Uson wanted to
assuage somewhat the wrong she has done to them.
SC: The assignment would partake of a nature of a donation of
real property, since it involved no material consideration, thus
requiring a public doc to be valid, and must be accepted either
in the same doc or in a separate one (Art. 633 OCC). This was
not followed; hence donation has no valid effect.

De Borja v De Borja (1972)

Petitioners:
(1) TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE
BORJA, administrator-appellee; JOSE DE BORJA, as
administrator, CAYETANO DE BORJA, MATILDE DE
BORJA and CRISANTO DE BORJA (deceased) as
Children of Josefa Tangco, appellees,
(2) TESTATE ESTATE OF THE LATE FRANCISCO DE
BORJA, TASIANA O. VDA. DE DE BORJA, special
Administratrix appellee,
(3) TASIANA 0. VDA. DE BORJA, as Administratrix of the
Testate Estate of the late Francisco de Borja, plaintiffappellee,
Respondents:

(1) TASIANA VDA. DE DE BORJA, Special Administratrix

of the Testate Estate of Francisco de Borja, appellant. .
(2) JOSE DE BORJA, oppositor-appellant.
(3) JOSE DE BORJA, as Administrator of the Testate
Estate of the late Josefa Tangco, defendant-appellant.
Summary: After the death of Francisco, his second wife and his
children entered into a compromise agreement where
Franciscos son, Jose, agreed to pay a certain amount of money
to the second wife on the condition that the latter withdraws all
her claims and suits against the former. The agreement was
brought to the CFI. The second wife opposed saying that the
heirs cannot enter into such kind of agreement without first
probating the will of Francisco de Borja. The Supreme Court did
not agree. According to Article 777, NCC, since the hereditary
share in a decedent's estate is transmitted or vested
immediately from the moment of the death of such causante or
predecessor in interest, there is no legal bar to a successor (with
requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of
such share is not determined until the subsequent liquidation of
the estate. Of course, the effect of such alienation is to be
deemed limited to what is ultimately adjudicated to the vendor
heir.
facts of the case
Francisco de Borja filed a petition for the probate of the will
of his wife, Josefa Tangco. The will was probated on April 2,
1941. Francisco was appointed administrator in 1946, his son,
Jose, as co-administrator in 1952. Jose became sole
administrator when Francisco died 1954.
After the death of Josefa, Francisco, allegedly married
Tasiana Ongsingco. When Francisco died, she initiated testate
proceedings in the CFI of Nueva Ecija and was subsequently
appointed special administratix.
There was a series of proceedings over the administration,
settlement, partition, adjudication and distribution of the assets
as well as liabilities of the estates of Francisco de Borja and
Josefa Tangco. In these proceedings it was Tasiana versus the
children.
A compromise agreement made in October 1963.

The parties agreed to sell the Poblacion portion of the

Jalajala properties situated in Jalajala, Rizal, presently
under administration in the Testate Estate of Josefa
Tangco.

Jose also agreed to pay 800k to Tasiana as full and

complete payment and settlement of her hereditary
share in the estate of the late Francisco de Borja as
well as the estate of Josefa Tangco.

Tasiana was also obligated to withdraw all claims and

suits against Jose De Borja, specifically this land which
was to be sold.
The agreement was brought to the CFI of Rizal and Nueva
Ecija for approval. Tasiana opposed in both instances on these
grounds: (1) the heirs cannot enter into such kind of agreement
without first probating the will of Francisco de Borja; (2) that the
same involves a compromise on the validity of the marriage
between Francisco de Borja and Tasiana Ongsingco; and (3)
that even if it were valid, it has ceased to have force and effect.
Tasiana also relies on this Court's decision in Guevara vs.
Guevara where the Court held the view that the presentation of
a will for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when the
decedent left a will, is against the law and public policy.
issue
WON heirs can enter into such kind of agreement without first
probating the will of Francisco de Borja? [YES]
ratio

The doctrine of Guevara vs. Guevara is not applicable to

the case at bar. This is apparent from an examination of the
terms of the agreement between Jose de Borja and Tasiana
Ongsingco. Paragraph 2 of said agreement specifically
stipulates that the sum of P800,000 payable to Tasiana
Ongsingco shall be considered as full complete payment
settlement of her hereditary share in the estate of the late
Francisco de Borja as well as the estate of Josefa Tangco, ...
and to any properties bequeathed or devised in her favor by the
late Francisco de Borja by Last Will and Testament or by
Donation Inter Vivos or Mortis Causa or purportedly conveyed
to her for consideration or otherwise.
This provision evidences beyond doubt that the ruling in the
Guevara case is not applicable to the cases at bar. There was
here no attempt to settle or distribute the estate of
Francisco de Borja among the heirs thereto before the
probate of his will. The clear object of the contract was merely
the conveyance by Tasiana Ongsingco of any and all her
individual share and interest, actual or eventual in the
estate of Francisco de Borja and Josefa Tangco. There is no
stipulation as to any other claimant, creditor or legatee.
According to Article 777, NCC, since the hereditary share
in a decedent's estate is transmitted or vested immediately from
the moment of the death of such causante or predecessor in
interest, there is no legal bar to a successor (with requisite
contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent
of such share is not determined until the subsequent
liquidation of the estate. Of course, the effect of such
alienation is to be deemed limited to what is ultimately
adjudicated to the vendor heir.
However, the aleatory character of the contract does not
affect the validity of the transaction; neither does the coetaneous
agreement that the numerous litigations between the parties are
to be considered settled and should be dismissed, although
such stipulation, as noted by the Rizal Court, gives the contract
the character of a compromise that the law favors, for obvious
reasons, if only because it serves to avoid a multiplicity of suits.
Tasiana Ongsingco was his compulsory heir under article
995 of the present Civil Code. Wherefore, barring unworthiness
or valid disinheritance, her successional interest existed
independent of Francisco de Borja's last will and testament and
would exist even if such will were not probated at all. Thus, the
prerequisite of a previous probate of the will, as established in
the Guevara and analogous cases, cannot apply to the case of
Tasiana Ongsingco Vda. de de Borja.

Bonilla v Barcena (1976)

Petitioners: ROSALIO BONILLA (a minor) SALVACION
BONILLA (a minor) and PONCIANO BONILLA (their father) who
represents the minors
Respondents: LEON BARCENA, MAXIMA ARIAS BALLENA,
ESPERANZA BARCENA, MANUEL BARCENA, AGUSTINA
NERI, widow of JULIAN TAMAYO
Summary: Fortunata Barcena, mother Rosalio and Salvacion
Bonilla, and wife of Ponciano filed an action to quiet title over
certain parcels of land. During the pendency of the case,
Fortunata died. Defendants filed a motion to dismiss. When
counsel for plaintiff asked for the substitution of Fortunata but
Court dismissed the case.Court ruled that 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.
When Fortunata Barcena, therefore, died her claim or right to
the parcels of land, 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.
facts of the case

In 1975 Fortunata Barcena, mother of minors Rosalio

Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla,
instituted a civil action to quiet title over certain parcels of
land located in Abra.
o Defendants filed a written motion to dismiss the
complaint.
o Before the hearing of the motion to dismiss,
counsel for the plaintiff moved to amend the
complaint in order to include certain allegations
therein. Motion to amend the complaint was
granted.

Defendants filed another motion to dismiss the complaint

on the ground that Fortunata Barcena is dead and,
therefore, has no legal capacity to sue.
o Counsel for the plaintiff confirmed the death of
Fortunata Barcena, and asked for substitution by
her minor children and her husband, the
petitioners.
o 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.

Counsel moved to set aside the order of the dismissal

pursuant to Sections 16 and 17 of Rule 3 of the Rules of
Court.

Court denied the motion for reconsideration filed by counsel

for the plaintiff for lack of merit.
o Council 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.
issue
(1) Was the court correct in dismissing the action? NO
ratio

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.
o When the complaint was filed, 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.
o 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."
o This duty was complied with by the counsel for the
deceased plaintiff when he manifested before the
respondent Court that Fortunata Barcena died and
asked for the proper substitution of parties in the
case.
o 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.
o 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. 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.
o 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 ... ."
o The question as to whether an action survives or
not depends on the nature of the action and the
damage sued for.

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.

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.
o 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.

Cruz v Cruz (2010)

Petitioners: Memoracion Cruz, represented by Edgardo Cruz
Respondent: Oswaldo Cruz

Summary: Memoracion filed a Complaint for Annulment of

Sale, Reconveyance and Damages against her son, Oswaldo.
The latter and his wife caused the registration of Memoracions
property in their names through fraud, forgery and
misrepresentation. Memoracion died, however, after presenting
her evidence and chief and before the RTC could decide on the
case. Oswaldo claims that reconveyance is a personal action
and should not survive petitioners death. RTC and CA both
dismissed the case.
If the case affects primarily and principally property and property
rights, then it survives the death of the plaintiff or petitioner. If
the action survives despite death of a party, deceased may be
substituted by his heirs in the pending action. It is the duty of the
deceased's counsel to inform the court of such death, and to
give the names and addresses of the deceaseds legal
representatives. If a legal representative is not named or fails to
appear, it is the duty of the court to appoint an executor or
administrator for the estate of the deceased.
facts of the case
On October 18, 1993, Memoracion Cruz filed with RTC
Manila a Complaint for Annulment of Sale, Reconveyance and
Damages against her son Oswaldo Cruz.
Memoracion claimed that during her union with her
deceased common-law husband, she acquired a parcel of land
located at Tabora corner Limay Streets, Bo. Obrero, Tondo
Manila. The lot was registered in her name . Sometime in July
1992, she discovered that the title to the said property was
transferred by Oswaldo and his wife in their names in August
1991 by virtue of a Deed of Sale dated February 12, 1973. She
claims that the deed was executed through fraud, forgery,
misrepresentation and simulation, hence, null and void.
On October 30, 1996, Memoracion died after finished
presenting her evidence in chief. Through a Manifestation,
Memoracions counsel, Atty. Roberto T. Neri, notified the trial
court on January 13, 1997 of the fact of such death, evidenced
by a certificate thereof.
Oswaldo filed a Motion to Dismiss on the grounds that (1)
the reconveyance action is a personal action which does not
survive a partys death, pursuant to Section 21, Rule 3 ROC and
(2) to allow the case to continue would result in legal absurdity
whereby one heir is representing the defendant [and is a] coplaintiff in this case.
The RTC granted the motion to dismiss in the assailed
Order dated 2 June 1997. CA affirmed the RTC.
On October 17, 1997, Memoracions son-heir, Edgardo
Cruz, manifested to the trial court that he is retaining the
services of Atty. Neri for the plaintiff.

Hence, present case for annulment of sale of real property

merits survival despite the death of petitioner Memoracion Cruz.
If the action survives despite death of a party, it is the duty
of the deceased's counsel to inform the court of such death, and
to give the names and addresses of the deceaseds legal
representatives. The deceased may be substituted by his heirs
in the pending action. As explained in Bonilla:
x x x Article 777 CC provides that the
rights to the succession are transmitted
from the moment of the death of the
decedent. x x x When [plaintiff],
therefore, died[,] her claim or right to the
parcels of land x x x 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.
CA erred in affirming RTCs dismissal of the Petition. What
the RTC could have done was to require Edgardo Cruz to
appear in court and substitute Memoracion as party to the
pending case, pursuant to Section 16, Rule 3 of the 1997
Revised Rules of Civil Procedure, and established
jurisprudence.
On 17 October 1997, Edgardo Cruz filed with the RTC a
Manifestation, stating that he is retaining the services of Atty.
Roberto T. Neri. Consistent with the ruling in Heirs of Haberer v.
Court of Appeals, SC considered the Manifestation a formal
substitution of deceased Memoracion by her heir, Edgardo
Cruz. Oswaldo Cruz, although also an heir of Memoracion,
should be excluded as a legal representative in the case for
being an adverse party therein.
Procedure per Rule 16.3 ROC:
1. 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 a guardian ad litem for the minor heirs.
2. The court shall order legal representative(s)to appear
and be substituted within 30 days from notice.
3. If no legal representative is named by the counsel for
the deceased, or if the one named shall fail to appear within
the specified period, the court may order the opposing
party, within a specified time, to procure the appointment of
an executor or administrator for the estate of the deceased
and the latter shall immediately appear for and on behalf of
the deceased. (Reason: to protect all concerned who may
be affected by the intervening death, particularly the
deceased and his estate.)

issue
Whether or not a Petition for Annulment of Deed of Sale,
Reconveyance and Damages is a purely personal action which
did not survive Memoracion Cruz death. NO.
ratio
The question as to whether an action survives or not
depends on the nature of the action and the damage sued for.
In the causes of action which survive, the wrong complained [of]
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.1
SC has held that a Petition for Declaration of Nullity of Deed
of Sale of Real Property is one relating to property and property
rights, and therefore, survives the death of the petitioner. 2

Bonilla v. Barcena

Court charges in procuring such appointment, if defrayed

by the opposing party, may be recovered as costs.

Bough v Modesto (1954)

Petitioner: Bough
Respondents: Modesto, Anapol
Summary: Modesto, Bough and Anapol executed a private
document where Modesto agreed that he would share with
Anapol and Bough whatever property he might inherit from his
deceased wife. Modesto and Anapol instituted an action to
2

Sumaljag v. Literato

enforce the contract but Modesto alleged that the contract was
contrary to law, morals and public policy.
The SC held that the contract is valid and binding between
parties even if the object of which is Modestos inheritance. The
right by inheritance are acquired and transmitted upon the death
of the decedent. As such, it must necessarily follow that it is
perfectly legal for an heir to enter into a contractin this case,
with the understanding that the contract would be effective only
if and when he is really declared an heir and only as regards any
property that might be adjudicated to him.
facts of the case
- On March 4, 1936, MODESTO, BOUGH and ANAPOL
executed a private document where Modesto agreed that he
would share with Anapol and Bough whatever property he
might inherit from his deceased wife.
It was provided in the document that the property was to
be divided and proportioned 1/8 each provided that
Anapol pay the expenses to be incurred in connection
with the litigation that Modesto was facing.
- Bough and Anapol instituted the action to secure judgment
ordering to divide the properties left by his wife, in the manner
and form provided in the private document.
- Modesto alleged:
That Bough failed to comply with the terms and conditions
in the contract, and
That the contract was contrary to law, morals and public
policy.
issue
Whether the contract, the object of which is Modestos
inheritance, is valid and binding between the parties. YES.
Ratio
- It is settled that rights by inheritance are acquired and
transmitted upon death of the decedent. As such, it must
necessarily follow that it is perfectly legal for an heir to enter
into a contractin this case, with the understanding that the
contract would be effective only if and when he is really
declared an heir and only as regards any property that might
be adjudicated to him.
- It cannot be said that the disputed contract deals and
interferes with properties in custodia legis because the
reasonable interpretation that must be given to it
contemplates and provides for the partition only of such
property as may be adjudicated to Modesto if and when he is
declared to be an heir of his deceased wife, or when it is
declared through the probate court.
- The present action should not be construed strictly as an
action for partition but only as an action intended to determine
the right of the parties under the terms of the contract.
Borromeo-Herrera v Borromeo (1987)
Petitioner: Patronicio Borromeo-Herrera
Respondents: Fortunato Borromeo and Hon. Francisco P.
Burgos, Judge of CFI Cebu Branch II
Summary: Vito Borromeo, a widower, died without forced heirs
but leaving extensive properties. A probate of his will, devising
all his properties to Tomas, Fortunato and Amelia, all surnamed
Borromeo, in equal and undivided shares, and designating
Junquera as executor thereof, was filed by Junquera. CFI
denied probate holding that the document presented as the will
of the deceased was a forgery. The testate proceeding was
converted into intestate proceeding. Several parties came

before the court filing claims or petitions alleging themselves as

heirs of the intestate estate of Vito Borromeo. CFI declared 9
persons/groups as the intestate heir of Vito. Fortunato filed a
motion before the trial court praying that he be declared as one
of the heirs of the deceased Vito, alleging that he is an
illegitimate son and he was omitted by the trial court in the
declaration of heirs. This was denied. Upon MR, he changed his
basis and put forward an Waiver allegedly executed by 5 of the
9 heirs in his favor. Fortunato also contends that under Art. 1043
of the Civil Code, there is no need for a person to be first
declared as heir before he can accept or repudiate an
inheritance. What is required is that he must first be certain of
the death of the person whom he is to inherit and that he must
be certain of his right of inheritance.
SC: the properties included in an existing inheritance cannot be
considered as belonging to third persons with respect to the
heirs, who by fiction of law continue the personality of the former.
Nor do such properties have the character of future property,
because the heirs acquire a right to succession from the moment
of the death of the deceased, by principle established in article
657 and applied by article 661 of the Civil Code, according to
which the heirs succeed the deceased by the mere fact of death.
More or less, time may elapse from the moment of the death of
the deceased until the heirs enter into possession of the
hereditary property, but the acceptance in any event retroacts to
the moment of the death, in accordance with article 989 of the
Civil Code. In this case however, the intention of the heirs to
waive their rights was not clearly established.
facts of the case

Vito Borromeo, a widower and permanent resident of Cebu

City, died on March 13, 1952, in Paranaque, Rizal at the
age of 88 years, without forced heirs but leaving extensive
properties in Cebu.

On April 19, 1952, Jose Junquera filed with CFI Cebu a

petition for the probate of a one page document as the last
will and testament left by Vito.
o In the document, Vito devised all his properties to
Tomas, Fortunato and Amelia, all surnamed Borromeo,
in equal and undivided shares, and designating
Junquera as executor thereof.
o The document, drafted in Spanish, was allegedly
signed and thumbmarked by the deceased in the
presence of 3 witnesses who acted as witnesses.

On May 28, 1960, the probate court held that the document
presented as the will of Vito was a forgery. The decision of
the probate court was affirmed by SC.

The testate proceeding was converted into an intestate

proceeding.

Several parties came before the court filing claims or

petitions alleging themselves as heirs of the intestate estate
of Vito Borromeo.

When the petitions and claims were heard jointly, the

following facts were established:
o Maximo Borromeo and Hermenegilda Galan, husband
and wife (the latter having predeceased the former),
were survived by their eight (8) children, namely: Jose
Ma. Borromeo, Cosme Borromeo, Pantaleon
Borromeo, Vito Borromeo, Paulo Borromeo, Anecita
Borromeo, Quirino Borromeo and, Julian Borromeo
o Vito Borromeo died a widower, without any issue, and
all his brothers and sisters predeceased him. (Vitos
brothers and sisters are survived by their respective
heirs; See illustration in last page)

On April 10, 1969, CFI Cebu, invoking Art. 972 of the Civil
Code, issued an order declaring the following, to the
exclusion of all others, as the intestate heirs of the
deceased Vito Borromeo: Jose Cuenco Borromeo, Judge

Crispin Borromeo, Vitaliana Borromeo, Patrocinio

Borromeo Herrera, Salud Borromeo, Asuncion Borromeo,
Marcial Borromeo, Amelinda Borromeo de Talam, and the
heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate
of Vito Borromeo shall be divided into 4/9 and 5/9 groups
and distributed in equal and equitable shares among the 9
declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the
exception of Patrocinio B. Herrera, signed an agreement of
partition of the properties of the deceased Vito Borromeo
which was approved by the trial court, in its order of August
15, 1969.
On August 25, 1972, Fortunato Borromeo, who had earlier
claimed as heir under the forged will, filed a motion with the
CFI praying that he be declared as one of the heirs of Vito
o Fortunato alleged that he is an illegitimate son of Vito
and that in the declaration of heirs made by the trial
court, he was omitted. As an acknowledged illegitimate
child, he stated that he was entitled to a legitime equal
in every case to four-fifths of the legitime of an
acknowledged natural child.
The court dismissed the motion. Ground: motion already
barred by the order of the court dated April 12, 1969
declaring the persons named therein as the legal heirs of
the deceased Vito Borromeo,
Fortunato filed an MR. Fortunato changed the basis for his
claim to a portion of the estate.
o Fortunato asserted and incorporated a Waiver of
Hereditary Rights dated July 31, 1967, supposedly
signed by Pilar N. Borromeo, Maria B. Putong, Jose
Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
Patrocinio Borromeo-Herrera, Marcial Borromeo,
Asuncion Borromeo, Federico V. Borromeo, Consuelo
B. Morales, Remedios Alfonso and Amelinda B. Talam
o In the waiver, 5 of the 9 declared heirs relinquished to
Fortunato their shares in the disputed estate.
On December 24, 1974, the trial court declared Fortunato
as entitled to 5/9 of the estate of Vito Borromeo.
o TC concluded that the five declared heirs who signed
the waiver agreement assigning their hereditary rights
to Fortunato Borromeo had lost the same rights,
In the present petition, the petitioner seeks to annul and set
aside the trial court's order declaring Fortunato Borromeo
entitled to 5/9 of the estate of Vito Borromeo
The petitioner argues that
o the trial court had no jurisdiction to take cognizance of
the claim of Fortunato

because it is not a money claim against the

decedent but that it may be likened to that of a
creditor of the heirs which is improper.

that the claim of Fortunato under the waiver

agreement was filed beyond the time allowed for
filing of claims as it was filed only sometime in
1973, after there had been a declaration of heirs
(April 10, 1969), an agreement of partition (April
30, 1969), the approval of the agreement of
partition and an order directing the administrator to
partition the estate (August 15, 1969).
o that the document entitled " waiver of Hereditary
Rights" executed on July 31, 1967, aside from having
been cancelled and revoked on June 29, 1968, is
without force and effect

because there can be no effective waiver of

hereditary rights before there has been a valid
acceptance of the inheritance the heirs intend to
transfer.

Pursuant to Article 1043 of the Civil Code, to make

acceptance or repudiation of inheritance valid, the

person must be certain of the death of the one

from whom he is to inherit and of his right to the
inheritance.
Since the petitioner and her co-heirs were not
certain of their right to the inheritance until they
were declared heirs, their rights were, therefore,
uncertain.

issue
WoN the court has jurisdiction to pass upon the validity of the
waiverYES.
WoN the heirs validly waived their rightsNO.
Ratio
The trial court had jurisdiction to pass upon the validity of
the waiver agreement.
It must be noted that the lower court disallowed the probate of
the will and declared it as fake. Upon appeal, this Court
affirmed. Subsequently, several parties came before the lower
court filing claims or petitions alleging themselves as heirs of
the intestate estate of Vito Borromeo. We see no impediment
to the trial court in exercising jurisdiction and trying the said
claims or petitions. Moreover, the jurisdiction of the trial court
extends to matters incidental and collateral to the exercise of
its recognized powers in handling the settlement of the estate.
The heirs could waive their rights in 1967 even if the order
to partition the estate was issued only in 1969
The prevailing jurisprudence on waiver of hereditary rights is
that "the properties included in an existing inheritance cannot
be considered as belonging to third persons with respect to
the heirs, who by fiction of law continue the personality of the
former. Nor do such properties have the character of future
property, because the heirs acquire a right to succession from
the moment of the death of the deceased, by principle
established in article 657 and applied by article 661 of the Civil
Code, according to which the heirs succeed the deceased by
the mere fact of death. More or less, time may elapse from the
moment of the death of the deceased until the heirs enter into
possession of the hereditary property, but the acceptance in
any event retroacts to the moment of the death, in accordance
with article 989 of the Civil Code. The right is vested, although
conditioned upon the adjudication of the corresponding
hereditary portion." (Osorio v. Osorio and Ynchausti
Steamship Co.).
In this case, however, the purported "Waiver of Hereditary
Rights" cannot be considered to be effective.
For a waiver to exist, three elements are essential:
(1) the existence of a right;
(2) the knowledge of the existence thereof; and
(3) an intention to relinquish such right.

The intention to waive a right or advantage must be shown

clearly and convincingly, and when the only proof of
intention rests in what a party does, his act should be so
manifestly consistent with, and indicative of an intent to,
voluntarily relinquish the particular right or advantage that
no other reasonable explanation of his conduct is possible.
The circumstances of this case show that the signatories to the
waiver document did not have the clear and convincing intention
to relinquish their rights,
(1) On October 27, 1967. Fortunato, Tomas, and Amelia
Borromeo filed a pleading entitled "Compliance" wherein
they submitted a proposal for the amicable settlement of
the case. In that Compliance, they proposed to concede to
all the eight (8) intestate heirs of Vito Borromeo all
properties, personal and real, including all cash and sums
of money in the hands of the Special Administrator, as of
October 31, 1967, not contested or claimed by them in any
action then pending in the Court of First Instance of Cebu.

(2)

(3)

(4)

(5)

In turn, the heirs would waive and concede to them all the
14 contested lots. In this document, the respondent
recognizes and concedes that the petitioner, like the other
signatories to the waiver document, is an heir of the
deceased Vito Borromeo, entitled to share in the estate.
This shows that the "Waiver of Hereditary Rights" was
never meant to be what the respondent now purports it to
be. Had the intent been otherwise, there would not be any
reason for Fortunato, Tomas, and Amelia Borromeo to
mention the heirs in the offer to settle the case amicably,
and offer to concede to them parts of the estate of the
deceased;
On April 21 and 30, 1969, the majority of the declared heirs
executed an Agreement on how the estate shall be
distributed. This Agreement of Partition was approved by
the trial court on August 15, 1969;
On June 29, 1968, the petitioner, among others, signed a
document entitled Deed of Assignment" purporting to
transfer and assign in favor of the respondent and Tomas
and Amelia Borromeo all her (Patrocinio B. Herrera's)
rights, interests, and participation as an intestate heir in the
estate of the deceased Vito Borromeo. The stated
consideration for said assignment was P100,000.00;
On the same date, June 29, 1968, the Tomas, and Amelia
Borromeo (assignees in the aforementioned deed of
assignment) in turn executed a "Deed of Reconveyance"
in favor of the heirs-assignors named in the same deed of
assignment. The stated consideration was P50,000.00;
A Cancellation of Deed of Assignment and Deed of
Reconveyance was signed by Tomas Borromeo and
Amelia Borromeo on October 15, 1968, while Fortunato
Borromeo signed this document on March 24, 1969.
Federico
Marisol
Canuto, Jr.
Exequiel
Canuto(in
1959)
Maximo
Matilde
Jose Ma.

Jose
Consuelo
Pilar
Salud
Patronicio B. Herrera
Maria B. Atega
Luz

Andres

Hermenegilda B.
Nonnenkamp
Rosario

Marcial

Fe b. Queroz

Carlos

Amelinda

Asuncion
Maximo Borromeo
and Hermenegilda
Galan

Cosme
Florentina
Amilio
Carmen
Ismaela
Pantaleon

Teofilo

VITO

Crispin

Anecita Ocampo
Castro

Aurora

Lourdes Ocampo

Paulo
Anecita
Quirino
Julian

Atty. Jose

Ramon Ocampo

Elena Ocampo
Antonietta
Ocampo

Jose Barcenilla, Jr.