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VIVENCIO LEGASTO, special administrator of the Intestate estate of Sabina Almadin, plaintiffappellee, vs. MARIA VERZOSA, ET AL.

,||| (Legasto v. Verzosa, G.R. No. 32344, March 31, 1930)


1. PARTITION "INTER VIVOS;" WHERE WILL VOID. The partition made by a testator inter
vivos in pursuance of a will which has been disallowed is null and void.
2. DONATION OF REALTY, NULL AND VOID. The gift of realty made in a public instrument is
null and void when the deed fails to show the acceptance, or where the formal notice of the acceptance,
made in a separate instrument, is either not given to the donor or else not noted in the deed of gift and in the
separate acceptance.
DECISION
VILLA-REAL, J p:
This is an appeal taken by the defendants, Maria Verzosa et al., from the judgment of the Court
of First Instance of Laguna, the dispositive part whereof is as follows:
"Wherefore, the court hereby orders the defendants to deliver to the plaintiff, as administrator of
the estate of Sabina Almadin, the parcels of land described in paragraph 7 of his amended complaint (reply)
dated January 5, 1929, as said paragraph is amended on pages 4 and 5 of the transcript of the stenographic
notes, excluding the lots described in certificates of title Nos. 6557, 6558, and 6559 of the Laguna registry of
deeds, which are hereby declared to be the absolute property of Victoria Verzosa, wife to Jose Carasco.
Without express pronouncement as to costs."
In support of their appeal, the appellants assign the following alleged as committed by the court
below in its decision, to wit:
"1. The court below erred in ordering the defendants to make delivery of the property in litigation
to the plaintiff as special administrator of the decedent Sabina Almadin's intestate estate.
"2. The court below erred in holding that public instruments 2, 31, 42, and 73, are deeds of gift
of the property in litigation made by Sabina Almadin to the defendants.
"3. The court below erred in holding that said donation is void per se, inasmuch as it does not
appear upon said documents that the defendants accepted and acknowledged its acceptance to the donor,
Sabina Almadin.
"4. The court below erred in denying the defendants' motion for a new trial.
"5. The court below erred in failing to hold that the defendants are the sole and lawful owners of
the property in litigation."
The relevant facts proved at the trial which are essential to the solution of the questions raised
by the instant appeal are as follows:
On May 13, 1925, Sabina Almadin executed a will (Exhibit A-2), devising certain parcels of land
belonging to her, to her four nieces, Maria Verzosa, Oliva Verzosa, Toribia Verzosa, and Ruperta Palma,
daughters of her sister Catalina Almadin, designating the parcels to be given to each.
On August 8, 1925, Sabina Almadin partitioned her property among her aforesaid sister and
nieces, executing a deed to her niece, Maria Verzosa, assigning and making over to her three parcels of her
land therein described (Exhibit 2). On September 23, 1925, Maria Verzosa and Sabina Almadin appeared
before the deputy provincial assessor and municipal secretary of Bian, Laguna, and made two sworn
statements, Exhibits 3 and 5, wherein the former stated that she had purchased the parcels of land
described in the assignment Exhibit 2, from Sabina Almadin, and the latter in turn declared that she had sold
them to Maria Verzosa, and that said vendee had already claimed them as her property for the payment of
the land tax.
On the same day, August 8, 1925, Sabina Almadin executed a deed (Exhibit 31) in favor of her
niece Oliva Verzosa, assigning to her two parcels of land described in said instrument, and on October 14,
1925, assignor and assignee appeared before the aforesaid deputy provincial assessor and municipal
secretary of Bian, Laguna, and subscribed two sworn statements (Exhibits 32 and 34), the former stating
that she had sold the two parcels of land described in the deed of assignment, Exhibit 31, to the latter, and
the latter in turn stating that she had purchased of the former the same parcels of land, the ownership of
which had already been claimed by Oliva Verzosa by a tax declaration in her own name on September 25,
and October 13, 1925, respectively.
On the said day August 8, 1925, Sabina Almadin executed a deed, Exhibit 45, in favor of her
niece Toribia Verzosa, assigning to her the four parcels of land therein described; and on September 23,
1925, assignor and assignee appeared before the aforesaid deputy provincial assessor and municipal
secretary of Bian Laguna, and subscribed a sworn statement, Exhibit 48, the former stating that she had
sold to Toribia Verzosa the parcel of land described therein (Exhibit 45), bearing tax registry No. 9765, and
the latter stating that she had purchased said parcel of the former and declared it to be her own property for
the payment of the land tax.
Again on the said day, August 8, 1925, Sabina Almadin executed a deed (Exhibit 73) to her
niece Ruperta Palma assigning to her three parcels of land described therein; and on September 23, 1925,
assignor and assignee appeared before the deputy provincial assessor and municipal secretary of Bian,

Laguna, and subscribed two sworn statements (Exhibits 74 and 76) wherein the former stated that she had
sold to the latter the parcels of land described in the deed of assignment (Exhibit 73) and the latter stated
that she had purchased said parcels of the former, and had declared them to be her own property for the
payment of the land tax (Exhibits 75 and 77).
The assignees, Maria Verzosa, Toribia Verzosa, Oliva Verzosa, and Ruperta Palma, took
possession of their respective parcels thus ceded by Sabina Almadin, and have to this day been cultivating
them as exclusive owners thereof.
Sabina Almadin passed away on February 22, 1926 and on March 12th of the same year, her
sister, Catalina Almadin , represented by Attorney Federico Mario, propounded her will, Exhibit A-2,
mentioned above, for probate. By virtue of the decision rendered by the Court of First Instance of Laguna on
December 22, 1926 (Exhibit A-4), affirmed by this court on appeal (Exhibit D), said will was not admitted to
probate. 1 Vivencio Legasto, then, the special administrator appointed by said Court of First Instance of
Laguna to take charge of Sabina Almadin's estate, filed the complaint which originated this case, claiming
the delivery of the parcels of land described in paragraph 7 of his aforesaid complaint as amended.
The first question to decide in the instant appeal is whether the partition made by Sabina
Almadin of her property among her nieces, the defendants and appellants herein, was valid and
enforceable.
Article 1056 of the Civil Code provides:
"ART. 1056. If the testator should make a partition of his property by an act inter vivos, or by will,
such partition shall stand in so far as it does not prejudice the legitime of the forced heirs."
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following
doctrine:
"Considering that the language of article 1056 cannot be interpreted to mean that a person may,
be acts inter vivos, partition his property referred to in the section wherein said article is found, without the
authority of a testament containing an expression of his last will, or the authority of law, for, otherwise, a
partition thus made would be tantamount to making a will in a manner not provided for, authorized, nor
included in the chapter referring to testaments, and especially, to the forms thereof, which is entirely different
from the legal consequences of a free disposition made by parents during their lifetime, whereby they give to
their children the whole or a part of their property;
"Considering that, inasmuch as the second paragraph of article 1271 makes reference to the
aforesaid article, in providing that no contracts may be entered into with respect to future inheritances except
those the object of which is to make a division inter vivos of the estate in accordance with article 1056, it is
evident that said difference likewise leads to the conclusion that a partition thus made should be on the
basis of a testamentary or legal succession and should be made in conformity with the fundamental rules
thereof and the order of the heirs entitled to the estate, because neither of the two provisions could be given
a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the
owner, which, otherwise, would have to be done upon the death of the testator in order to carry into effect
the partition of the estate among the persons interested."
Manresa comments on the same article as follows:
"A distinction must be made between the disposition of property and its division; and the
provision of article 1056 authorizing the testator to dispose of his property by acts inter vivos or by last will,
must be understood in accordance with this distinction. The idea is to divide the estate among the heirs
designated by the testator. This designation constitutes the disposition of the properties to take effect after
his death, and said act must necessarily appear in the testament because it is the expression of the
testator's last will and must be surrounded by appropriate formalities. Then comes the second part, to wit,
the division in conformity with that disposition, and the testator may make this division in the same will or in
another will, or by an act inter vivos. With these words the law, in article 1056 as well as in article 1057,
which we shall hereafter examine, makes allusion to the forms or manner of making the partition and not to
be effects thereof, which means that, for purposes of partition the formal solemnities which must accompany
every testament or last will are not necessary. Neither is it necessary to observe the special formalities
required in case of donations, because it is not a matter of disposing gratuitously of properties, but of
dividing those which already have been legally disposed of."
It is thus seen that both the Spanish Supreme Court and the learned and authoritative
commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his property, but he
must first make a will with all the formalities provided for by law. And it could not be otherwise, for without a
will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of
his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes
of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law
evidently desired to distinguish between one who freely donates his property in life and one who disposes of
it by will to take effect after his death.
Sabina Almadin must have been aware of the necessity of a prior will, since before making the

partition of her property among her nieces, the defendants herein, she executed a will giving to each of them
the same parcels of land which she later transferred to them gratuitously.
Now, then, section 625 of the Code of Civil Procedure provides:
"SEC. 625. Allowances necessary, and conclusive as to execution. No will shall pass either
the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the
Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to
its due execution."
As Sabina Almadin's will was disallowed for the reason that it did not contain all the essential
requisites provided by law for its validity, can the aforesaid partition of her estate made by said testatrix
among her nieces be deemed valid? Certainly not; for it is an indispensable condition precedent to a testator
partitioning his estate inter vivos that he have made a valid will disposing of said estate among his heirs; and
if this will be declared null and void, the partition made by the testator in pursuance of its provisions is
likewise null and void, for where these provisions cease to exist, the partition made in conformity therewith
also becomes null and void, as the cessation of the cause implies the cessation of the effect.
And since Sabina, Almadin's will is null and void for lack of the legal requisites, consequently,
the partition which she made of her estate among her nieces the defendants-appellants herein, during her
lifetime is likewise null and void.
The second question to be decided is whether or not the conveyances made by Sabina Almadin
of the parcels of land in litigation, in favor of her nieces, respectively, by virtue of the instruments Exhibits 2,
31, 47 and 73 can be considered valid and enforceable.
Article 633 of the Civil Code provides that in order that a donation of real property be valid, it
must be made by public instrument, in which the property donated must be specifically described, and that
the acceptance may be made in the same deed of gift or in a separate instrument, but in the latter case
notice thereof should be given the donor in due form, and a note to that effect inserted in both instruments.
There is no question that the documents Exhibits 2, 31, 42, and 73 contain all the requisites for
public instruments. However, they do not show the acceptance of the respective donees.
It is contended that the sworn statements Exhibits 3, 5, 32, 34, 48, 74, and 76 signed by Sabina
Almadin in which it appears that she has assigned to each of her nieces, respectively, the parcels of land in
litigation, and wherein each of said nieces states that she has purchased the same parcels of land from her
aunt Sabina Almadin, constitute a gift and an acceptance at the same time.
But it appears that said sworn statements refer to a sale and not to a gift and cannot, therefore,
be considered as public instruments of gifts showing the acceptance of the donees.
It is also contended that said sworn statements constitute separate deeds of acceptance; but
even if that were so, there is still lacking the legal requisite of notification in due form to the donor of the
donee's acceptance, and the annotation thereof in the deed of gift and in the instrument of acceptance. The
formal notice calls for the agency of the same notary who authenticated the acceptance and he should
under his authority make the annotation of said notice, as indicated (5 Manresa, pp. 120, 121).
Furthermore, the aforesaid sworn statements are not deeds transferring title but mere
acknowledgments made under oath of the fact of the transfer, required by the law in order that the provincial
assessor may make the proper transfer of the tax declarations of the vendor to the vendee, where the
transfer has not been recorded in the registry of deeds.
In view of all the foregoing, we are of opinion and so hold: (1) That the partition made by a
testator inter vivos in pursuance of a will which has been disallowed is null and void; and (2) that the gift of
realty made in a public instrument which fails to show the acceptance, or wherein the formal notice of the
acceptance is either not given to the donor or else not noted in the deed of gift and in the separate
acceptance, is null and void.
Wherefore, finding no error in the judgment appealed against the appellants. So ordered.
||| (Legasto v. Verzosa, G.R. No. 32344, March 31, 1930)

ANGELA I. TUASON, plaintiff-appellant, vs. ANTONIO TUASON, JR., and GREGORIO ARANETA, INC.,
defendants-appellees.
1. COMMUNITY PROPERTY; PARTITION; RESCISSION. A contract among land co-owners
wherein they agreed to fill their property, contract roads therein and then subdivide in into small lots for sale,
the proceeds to be later divide among them, and to this end one of them was to finance the whole
development and subdivision, to prepare a schedule of prices and conditions of sale subject to the approval
of the other two co-owners, to sell the subdivided lots and execute the corresponding contracts with buyers,
and to receive 50 per cent of the gross selling price of the lots and the rents that may be collected from the
property while in the process of sale, the remaining 50 per cent to be divided in equal portions among the
three co-owners, does not violate article 400 of the Civil Code. Far from violating the prohibition against a
co-owner being obliged to remain a party to the community, the contract precisely has for its purpose and
object the dissolution of the co-ownership and of the community by selling the parcel held in common and
dividing the proceeds of the sale among the co-owners. The obligation imposed in the contract to preserve
the co-ownership until all the lots shall have been sold is a mere incident to the main object of dissolving the
co-ownership.
DECISION
MONTEMAYOR, J p:
In 1941 the sisters Angela I. Tuason and Nieves Tuason de Barreto and their brother Antonio
Tuason Jr., held a parcel of land with an area of 64,928.6 sq. m. covered by Certificate of Title No. 60911 in
Sampaloc, Manila, in common, each owning an undivided 1/3 portion. Nieves wanted and asked for a
partition of the common property, but failing in this, she offered to sell her 1/3 portion. It seems that the
objection to dividing the property was that it would lose in value by the proposed partition. The share of
Nieves was offered for sale to her sister and her brother but both declined to buy it. The offer was later made
to their mother but the old lady also declined to buy, saying that if the property later increased in value, she
might be suspected of having taken advantage of her daughter. Finally, the share of Nieves was sold to
Gregorio Araneta Inc., a domestic corporation, and a new Certificate of Title No. 61721 was issued in lieu of
the old title No. 60911 covering the same property. The three co-owners agreed to have the whole parcel
subdivided into small lots and then sold, the proceeds of the sale to be later divided among them. This
agreement is embodied in a document (Exh. 6) entitled "Memorandum of Agreement" consisting of ten
pages, dated June 30, 1941.
Before, during and after the execution of this contract (Exh. 6), Atty. J. Antonio Araneta was
acting as the attorney-in-fact and lawyer of the two co-owners, Angela I. Tuason and her brother Antonio
Tuason Jr. At the same time he was a member of the Board of Directors of the third co-owner, Araneta, Inc.
The pertinent terms of the contract (Exh. 6) may be briefly stated as follows: The three coowners agreed to improve the property by filling it and constructing roads and curbs on the same and then
subdivide it into small lots for sale. Araneta Inc. was to finance the whole development and subdivision; it
was to prepare a schedule of prices and conditions of sale, subject to the approval of the two other coowners; it was invested with authority to sell the lots into which the property was to be subdivided, and
execute the corresponding contracts and deeds of sale; it was also to pay the real estate taxes due on the
property or of any portion thereof that remained unsold, the expenses of surveying, improvements, etc., all
advertising expenses, salaries of personnel, commissions, office and legal expenses, including expenses in
instituting all actions to eject all tenants or occupants on the property; and it undertook the duty to furnish
each of the two co-owners, Angela and Antonio Tuason, copies of the subdivision plans and the monthly
sales and rents and collections made thereon. In return for all this undertaking and obligation assumed by
Araneta Inc., particularly the financial burden, it was to receive 50 per cent of the gross selling price of the
lots, and any rents that may be collected from the property, while in the process of sale, the remaining 50
per cent to be divided in equal portions among the three co-owners so that each will receive 16.33 per cent
of the gross receipts.
Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh. 6), for purposes of
reference we are reproducing them below:
"(9) This contract shall remain in full force and effect during all the time that it may be necessary
for the PARTY OF THE SECOND PART to fully sell the said property in small and subdivided lots and to fully
collect the purchase prices due thereon; it being understood and agreed that said lots may be rented while
there are no purchasers thereof;
"(11) The PARTY OF THE SECOND PART (meaning Araneta Inc.) is hereby given full power
and authority to sign for and in behalf of all the said co-owners of said property all contracts of sale and
deeds of sale of the lots into which this property might be subdivided; the powers herein vested to the
PARTY OF SECOND PART may not be revoked until the purposes of this contract have been fulfilled and
carried out, and the PARTY OF THE SECOND PART may, under its own responsibility and risk, delegate
any of its powers under this contract to any of its officers, employees or to third persons;
"(15) No co-owner of the property subject-matter of this contract shall sell, alienate or dispose of
his ownership, interest or participation therein without first giving preference to the other co-owners to

purchase and acquire the same under the same farms and conditions as those offered by any other
prospective purchaser. Should none of the co-owners of the property subject-matter of this contract exercise
the said preference to acquire or purchase the same, then such sale to a third party shall be made subject to
all the conditions, terms, and dispositions of this contract; provided, the PARTIES OF THE FIRST PART
(meaning Angela and Antonio) shall be bound by this contract as long as the PARTY OF THE SECOND
PART, namely, the GREGORIO ARANETA, INC. is controlled by the members of the Araneta family, who are
stockholders of the said corporation at the time of the signing of this contract and/or their lawful heirs;"
On September 16, 1944, Angela I. Tuason revoked the powers conferred on her attorney-in-fact
and lawyer, J. Antonio Araneta. Then in a letter dated October 19, 1946, Angela notified Araneta, Inc. that
because of alleged breach of the terms of the "Memorandum of Agreement" (Exh. 6) and abuse of powers
granted to it in the document, she had decided to rescind said contract and she asked that the property held
in common be partitioned. Later, on November 20, 1946, Angela filed a complaint in the Court of First
Instance of Manila asking the court to order the partition of the property in question and that she be given
1/3 of the same including rents collected during the time that Araneta Inc., administered said property.
The suit was directed principally against Araneta, Inc. Plaintiff's brother, Antonio Tuason Jr., one
of the co-owners evidently did not agree to the suit and its purpose, for he joined Araneta, Inc. as a codefendant. After hearing and after considering the extensive evidence introduced, oral and documentary, the
trial court presided over by Judge Emilio Pea in a long and considered decision dismissed the complaint
without pronouncement as to costs. The plaintiff appealed from that decision, and because the property is
valued at more than P50,000, the appeal came directly to this Court.
Some of the reasons advanced by appellant to have the memorandum contract (Exh. 6)
declared null and void or rescinded are that she had been tricked into signing it; that she was given to
understand by Antonio Araneta acting as her attorney-in-fact and legal adviser that said contract would be
similar to another contract of subdivision of a parcel into lots and the sale thereof entered into by Gregorio
Araneta Inc., and the heirs of D. Tuason, Exhibit "L", but it turned out that the two contracts widely differed
from each other, the terms of contract Exh. "L" being relatively much more favorable to the owners therein
and less favorable to Araneta Inc.; that Atty. Antonio Araneta was more or less disqualified to act as her legal
adviser as he did because he was one of the officials of Araneta Inc., and finally, that the defendant
company has violated the terms of the contract (Exh. 6) by not previously showing her the plans of the
subdivision, the schedule of prices and conditions of the sale, in not introducing the necessary
improvements into the land and in not delivering to her share of the proceeds of the rents and sales.
We have examined Exh. "L" and compared the same with the contract (Exh. 6) and we agree
with the trial court that in the main the terms of both contracts are similar and practically the same.
Moreover, as correctly found by the trial court, the copies of both contracts were shown to the plaintiff Angela
and her husband, a broker, and both had every opportunity to go over and compare them and decide on the
advisability of or disadvantage in entering into the contract (Exh. 6); that although Atty. Antonio Araneta was
an official of the Araneta Inc.; being a member of the Board of Directors of the Company at the time that
Exhibit "6" was executed, he was not the party with which Angela contracted, and that he committed no
breach of trust. According to the evidence Araneta, Inc. showed to her the plans of the subdivision and all
the pertinent papers, and sent to her checks covering her share of the proceeds of the sale but that she
refused to receive the same; and that as a matter of fact, at the time of the trial, Araneta Inc., had spent
about P117,000 in improvement and had received as proceeds on the sale of the lots the respectable sum of
P1,265,538.48. We quote with approval that portion of the decision appealed from on these points:
"The evidence in this case points to the fact that the actuations of J. Antonio Araneta in
connection with the execution of exhibit 6 by the parties, are above board. He committed nothing that is
violative of the fiduciary relationship existing between him and the plaintiff. The act of J. Antonio Araneta in
giving the plaintiff a copy of exhibit 6 before the same was executed, constitutes a full disclosure of the facts,
for said copy contains all that appears now in exhibit 6.
"Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing the terms of the contract in
that the defendant corporation has failed (1) to make the necessary improvements on the property as
required by paragraphs 1 and 3 of the contract; (2) to submit to the plaintiff from time to time schedule of
prices and conditions under which the subdivided lots are to be sold; and to furnish the plaintiff a copy of the
subdivision plans, a copy of the monthly statement of the sales and rents of the subdivided lots, and a
statement of the monthly gross collections from the sale of the property.
"The Court finds from the evidence that the defendant Gregorio Araneta, Incorporated has
substantially complied with the obligation imposed by the contract exhibit 6 in its paragraph 1, and that for
improvements alone, it has disbursed the amount of P117,167.09. It has likewise paid taxes, commissions
and other expenses incidental to its obligations as defined in the agreement.
"With respect to the charge that Gregorio Araneta, Incorporated has failed to submit to plaintiff a
copy of the subdivision plans, list of prices and the conditions governing the sale of subdivided lots, and
monthly statement of collections from the sale of the lots, the Court is of the opinion that it has no basis. The

evidence shows that the defendant corporation submitted to the plaintiff periodically all the data relative to
prices and conditions of the sale of the subdivided lots, together with the amount corresponding to her. But
without any justifiable reason, she refused to accept them. With the indifferent attitude adopted by the
plaintiff, it was thought useless for Gregorio Araneta, Incorporated to continue sending her statement of
accounts, checks and other things. She had shown on various occasions that she did not went to have any
further dealings with the said corporation. So, if the defendant corporation proceeded with the sale of the
subdivided lots without the approval of the plaintiff, it was because it was under the correct impression that
under the contract exhibit 6 the decision of the majority co-owners is binding upon all the three.
"The Court feels that rescission of the contract exhibit 6 is not in order. Even granting that the
defendant corporation committed minor violations of the terms of the agreement, the general rule is that
'rescission will not be permitted for a slight or casual breach of the contract, but only for such breaches as
are so substantial and fundamental as to defeat the object of the parties in making the agreement' (Song Fo
& Co. vs. Hawaiian-Philippine Co., 47 Phil. 821)."
As regards improvements, the evidence shows that during the Japanese occupation from 1942
and up to 1946, the Araneta Inc. although willing to fill the land, was unable to obtain the equipment and
gasoline necessary for filling the low places within the parcel. As to sales, the evidence shows that Araneta
Inc. purposely stopped selling the lots during the Japanese occupation, knowing that the purchase price
would be paid in Japanese military notes; and Atty. Araneta claims that for this, plaintiff should be thankful
because otherwise she would have received these notes as her share of the receipts, which currency later
became valueless.
But the main contention of the appellant is that the contract (Exh. 6) should be declared null and
void because its terms, particularly paragraphs 9, 11 and 15 which we have reproduced, violate the
provisions of Art. 400 of the Civil Code, which for the purposes of reference we quote below:
"ART. 400. No co-owner shall be obliged to remain a party to the community. Each may, at any
time, demand the partition of the thing held in common.
"Nevertheless, an agreement to keep the thing undivided for a specified length of time, not
exceeding ten years, shall be valid. This period may be a new agreement."
We agree with the trial court that the provisions of Art. 400 of the Civil Code are not applicable.
The contract (Exh. 6) far from violating the legal provision that forbids a co-owner being obliged to remain a
party to the community, precisely has for its purpose and object the dissolution of the co-ownership and of
the community by selling the parcel held in common and dividing the proceeds of the sale among the coowners. The obligation imposed in the contract to preserve the co-ownership until all the lots shall have
been sold, is a mere incident to the main object of dissolving the co-ownership. By virtue of the document
Exh. 6, the parties thereto practically and substantially entered into a contract of partnership as the best and
most expedient means of eventually dissolving the co-ownership, the life of said partnership to end when the
object of its creation shall have been attained.
This aspect of the contract is very similar to and was perhaps based on the other agreement or
contract (Exh. "L") referred to by appellant where the parties thereto in express terms entered into a
partnership, although this object is not expressed in so many words in Exh. 6. We repeat that we see no
violation of Art. 400 of the Civil Code in the parties entering into the contract (Exh. 6) for the very reason that
Art. 400 is not applicable.
Looking at the case from a practical standpoint as did the trial court, we find no valid ground for
the partition insisted upon the appellant. We find from the evidence as was done by the trial court that of the
64,928.6 sq. m. which is the total area of the parcel held in common, only 1,600 sq. m. or 2.5 per cent of the
entire area remained unsold at the time of the trial in the year 1947, while the great bulk of 97.5 per cent had
already been sold. As well observed by the court below, the partnership is in the process of being dissolved
and is about to be dissolved, and even assuming that Art. 400 of the Civil Code were applicable, under
which the parties by agreement may agree to keep the thing undivided for a period not exceeding 10 years,
there should be no fear that the remaining 1,600 sq. m. could not be disposed of within the four years left of
the ten-year period fixed by Art. 400.
We deem it unnecessary to discuss and pass upon the other points raised in the appeal and
which counsel for appellant has extensively and ably discussed, citing numerous authorities. As we have
already said, we have viewed the case from a practical standpoint, brushing aside technicalities and
disregarding any minor violations of the contract, and in deciding the case as we do, we are fully convinced
that the trial court and this Tribunal are carrying out in a practical and expeditious way the intentions and the
agreement of the parties contained in the contract (Exh. 6), namely, to dissolve the community and coownership, in a manner most profitable to the said parties.
In view of the foregoing, the decision appealed from is hereby affirmed. There is no
pronouncement as to costs.
So ordered.
||| (Tuason v. Tuason, Jr., G.R. No. L-3404, April 02, 1951)

FRANCISCO GARCIA, PAZ GARCIA, and MARIA GARCIA, petitioners, vs. JOSE CALALIMAN,
PACIENCIA TRABADILLO, & HON. COURT OF APPEALS, Third Division, respondents.
1.CIVIL LAW; MODES OF ACQUIRING OWNERSHIP; SUCCESSION; WRITTEN NOTICE OF SALE
REQUIRED UNDER ARTICLE 1088 OF THE NEW CIVIL CODE. Petitioners filed the case for legal
redemption with the trial court on May 7, 1955. Respondents claim that the 30-day period prescribed in
Article 1088 of the New Civil Code for petitioners to exercise the right to legal redemption had already
elapsed at that time and that the requirement of Article 1088 of the New Civil Code that notice must be in
writing is deemed satisfied because written notice would be superfluous, the purpose of the law having been
fully served when petitioner Francisco Garcia went to the Office of the Register of Deeds and saw for
himself, read and understood the contents of the deeds of sale (Brief for respondents, p. 6). The issue has
been squarely settled in the case of Castillo v. Samonte, where this Court observed: "Both the letter and
spirit of the new Civil Code argue against any attempt to widen the scope of the notice specified in Article
1088 by including therein any other kind of notice, such as verbal or by registration. If the intention of the law
had been to include verbal notice or any other means of information as sufficient to give the effect of this
notice, then there would have been no necessity or reasons to specify in Article 1088 of the New Civil Code
that the said notice be made in writing for, under the old law, a verbal notice or information was sufficient
(106 Phil. 1023 [1960])." In the interpretation of a related provision (Article 1623 of the New Civil Code) this
Court had stressed that written notice is indispensable, actual knowledge of the sale acquired in some other
manners by the redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by the
Code, to remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt that the
alienation is not definitive. The law not having provided for any alternative, the method of notifications
remains exclusive, though the Code does not prescribe any particular form of written notice nor any
distinctive method for written notification of redemption (Conejero et al. v. Court of Appeals et al., 16 SCRA
775 [1966]; Etcuban v. Court of Appeals, 148 SCRA 607 [1987]; Cabrera v. Villanueva, G.R. No. 75069,
April 15, 1988).
2.ID.; AWARD OF DAMAGES; PRESENCE OF BAD FAITH WARRANTS AWARD OF ATTORNEY'S FEES;
CASE AT BAR. Petitioners fault the appellate court in not awarding them damages, attorney's fees and
costs. After finding in favor of respondent spouses and against petitioners herein it is untenable for
petitioners to expect that the appellate court would award damages and attorney's fees and costs. However
as already discussed, petitioners have not lost their right to redeem, for in the absence of a written
notification of the sale by the vendors, the 30-day period has not even begun to run. Petitioners clearly can
claim attorney's fees for bad faith on the part of respondents, first, for refusing redemption, and secondly for
declaring the entire land as theirs, although they knew some heirs had not sold their shares.
DECISION
PARAS, J p:
This is a petition for review on certiorari of the decision* of the Court of Appeals in CA G.R. No. 22179-R,
promulgated on August 31, 1966, reversing the decision of the Court of First Instance of Iloilo** in Civil Case
No. 3489, and rendering a new one dismissing the complaint of petitioner herein, the dispositive portion of
which reads as follows:
"WHEREFORE, the judgment appealed from is hereby reversed and another entered, dismissing plaintiff's
complaint. No pronouncement as to costs." (p. 29 Rollo)
The facts of the case are as follows:
On February 11, 1946, one Gelacio Garcia died intestate, leaving a parcel of unregistered land about 372
sq. meters, situated in the Municipality of Tubungan, Province of Iloilo (Exhibits, p. 19). On his death the
property was inherited by his nephews, nieces, grandnephews who are the descendants of his late brothers,
Pedro, Simeon, Buenaventura and Marcos (TSN, Sept. 6, 1956, p. 3).
On December 3, 1954, the heirs, Juanita Bertomo, Joaquin Garcia, Porfirio Garcia, Dioscoro Garcia, Flora
Garcia, Consolacion Garcia, Remedios Garcia, Trinidad Garcia, Baltazar Garcia signed a document entitled,
"Extrajudicial Partition and Deed of Sale" (Exhibits, p. 19). The parcel of land subject of the document was
described as follows:
"A parcel of residential land, about 372 square meters, 1st class, identified as Assessor's Lot No. 107, Block
No. 8, bounded on the north by Paz and Federal Streets; on the south by Tabaosares and Antonia Tacalinar;
on the East by Piedad Street; and on the West by Paz Street. This parcel of land has no concrete
monuments to indicate its boundaries but there are dikes, stones and temporary fences used as landmarks
and boundary signals. This parcel of land is covered by Tax Declaration No. 1149, S. of 1947, in the name of
Gelacio Garcia, and its assessed value of P110.00." (p. 19, Exhibits)
The last paragraph of the same document states:
"That for and in consideration of the sum of FIVE HUNDRED PESOS (P500.00), Philippine Currency, to us
in hand paid by the spouses, JOSE CALALIMAN, and PACIENCIA TRABADILLO, all of legal age, Filipinos
and residents of the municipality of Tubungan, province of Iloilo, Philippines, receipt of which we hereby
acknowledged and confessed to our entire satisfaction, do by these presents, cede, sell, convey and

transfer the above-described parcel of land unto the said spouses, Jose Calaliman and Paciencia Trabadillo,
their heirs, successors and assigns free from all liens and encumbrances whatsoever." (p. 19, Exhibits)
The document was inscribed in the Register of Deeds of Iloilo on February 24, 1955, Inscription No. 20814,
Page 270, Vol. 64 (Exhibits, p. 20).
On December 17, 1954 another group of heirs, Rosario Garcia, Margarita Garcia, Dolores Rufino,
Resurreccion Tagarao, Serafin Tagarao, Buenaventura Tagarao, Fortunata Garcia and Simeon Garcia, all
residents of Isabela, Negros Occidental, also sold to the spouses Jose Calaliman and Paciencia Trabadillo
through their attorney-in-fact, Juanito Bertomo, their shares, rights, interest and participation in the same
parcel of land. The Deed of Sale was registered in the Register of Deeds of Iloilo also on December 22,
1954, Inscription No. 20640, p. 88, Vol. 64 (Exhibits, p. 2122). cdll
On May 7, 1955 the heirs Francisco Garcia, Paz Garcia, and Maria Garcia, petitioners herein, filed against
the spouses Jose Calaliman and Paciencia Trabadillo, private respondents herein, Civil Case No. 3489 with
the Court of First Instance of Iloilo, for legal redemption of the 3/4 portion of the parcel of land inherited by
the heirs from the late Gelacio Garcia, which portion was sold by their co-heirs to the defendants. In the
complaint (Record on Appeal, p. 4) plaintiffs alleged, among others:
"5. That, plaintiffs' co-owners had never offered for sale their interest and shares over the said land to the
plaintiffs prior to the sale in favor of the defendants, nor given notice of such intention on part; and that, no
notice in writing has been given by said co-owners to the plaintiffs of the said sale, such that, plaintiffs came
to learn of it only from other source;
"6. That, plaintiffs would have purchased the interest and shares of their co-owners had the latter offered
the same to them prior to the sale thereof to the defendants; and that, within 30 days after learning of the
sale made to the defendants under annexes 'A', 'B' and 'B-1', plaintiffs made repeated offer to the
defendants to allow them to redeem said interest and shares acquired by the defendants in accordance with
the right granted to the plaintiffs by law in such a case, offering a reasonable price thereof of P300 taking
into consideration the fact that the defendants had acquired only 3/4 of the land of 372 square meters more
or less, in area with assessed value of P110 and a fair market value of 372 at P1 per square meter, the price
actually obtaining in the locality at the time of the sale thereof under Annexes 'A', 'B' and 'B-1', however, the
defendants refused and have until the present refused to grant redemption thereof giving no reason why
other than challenging the plaintiffs to bring their case in court:
"7. That, the circumstances surrounding the transaction between the defendants and plaintiffs' co-owners,
the vendors, were such that defendants could not have actually paid nor the vendors actually received the
total price of P800 as stipulated in the deeds Annexes 'A', 'B' and 'B-1', while the said price fixed is grossly
excessive and highly exaggerated and prohibitive for evidently ulterior motive:
"8. That, the land herein described is an ancestral property and plaintiffs have actually a house standing
thereon and having lived thereon ever since, such that, the defendants' refusal to allow redemption thereof
has caused the plaintiffs mental torture, worry and anxiety, forcing them to litigate and retain services of
counsel, therefore, plaintiffs demand against the defendants P500 for moral damage, P500 for exemplary
damage, P800 for attorney's fees, aside from actual expenses incurred; and, furthermore, P5 monthly as
reasonable value of defendants' occupation of a portion of the premises counting from the filing of this
complaint."
They prayed that the trial court render judgment:
"1. Declaring the plaintiffs to be entitled to redeem from the defendants for the price of P300 or for such
reasonable price as may be determined by this Honorable Court the interest and shares over the land
described in this complaint of plaintiffs' co-owners, Joaquin, Porfirio, Flora, Dioscoro, Consolacion,
Remedios, Trinidad, Baltazar, Rosario, Margarita, Dolores, Fortunata and Simon, all surnamed Garcia, and
Resurreccion, Serafin and Buenaventura, all surnamed Tagarao, sold by them to the defendants under the
deeds of sale Annexes 'A', 'B' and 'B-1' of this complaint; and ordering the defendants to execute the proper
instrument of reconveyance or redemption thereof in favor of the plaintiffs; and, ordering them to vacate the
premises;
"2. Condemning the defendants to pay to the plaintiffs P500 for moral damage; P500 for exemplary
damage; P300 for attorney's fees and actual expenses incurred; P5 monthly from the filing of this complaint
as reasonable value of defendants' occupation of a portion of the land; the costs of this action; and, for such
other relief and remedy as any be legal, just and equitable."
On the other hand, the defendants, private respondents herein, alleged in their answer the following special
affirmative defenses (Record on Appeal, p. 14):
"1. That plaintiffs have no cause of action against the herein defendants;
"2. That due notices in writing have been sent to plaintiff Francisco Garcia at his residence at 2875 Felix
Huertas St., Sta. Cruz, Manila, sometime last June 1953, in which plaintiff Francisco Garcia was informed of
his co-owners signified intention to sell their shares, and likewise, the other plaintiffs Paz and Maria Garcia
were personally notified of the same hence, for that reason, they are now barred to claim legal redemption of
the land in question, having filed their belated claim too late."

The trial court rendered judgment on September 12, 1957 in favor of the plaintiffs (Record on Appeal, p. 15),
the dispositive portion of which reads as follows:
"WHEREFORE, judgment is hereby rendered:
'(a)Sentencing the defendants to resell the property to the plaintiffs for P800.00 which is the total
consideration of the two deeds of sale Exhibits A and B;
'(b)In the event that the defendants fail to execute the deed of resale within ten days from the date this
decision becomes final, the Clerk of Court is hereby ordered to execute the corresponding deed pursuant to
the provisions of Section 10 of Rule 39 of the Rules of Court;
'(c)Without pronouncement as to costs."
On October 14, 1957 plaintiffs filed their notice of Appeal predicated on 4(a) failure of the Court to adjudge
the real or reasonable price of the sale or otherwise the redemption value thereof; (b) failure of the Court to
adjudge damages including attorney's fees in favor of the plaintiffs and the courts." (Record on Appeal, p.
18)
Defendants filed their own notice of appeal on October 15, 1957 (Record on Appeal, p. 19)
On appeal the Court of Appeals in a decision promulgated on August 31, 1966 reversed the decision of the
trial court and rendered another one dismissing plaintiff's complaint with no pronouncement as to costs
(Rollo, p. 22).
The instant petition for review by certiorari was filed with the Court on December 12, 1966 (Rollo, p. 11). The
Court at first dismissed the petition in a resolution dated December 22, 1966, for insufficient supporting
papers (Rollo, p. 35) but reconsidered the said Resolution of Dismissal later in a Resolution dated February
8, 1967 (Rollo, p. 97) as prayed for in a motion for reconsideration filed by petitioners on February 1, 1967
(Rollo, p. 38). The same Resolution of February 8, 1967 gave due course to the petition. prcd
The Brief for the Petitioners was filed on June 9, 1967 (Rollo, p. 106), the Brief for the Respondents was
received in the Court on August 31, 1967 (Rollo, p. 119).
Petitioners having manifested they would not file reply brief on September 14, 1967 (Rollo, p. 122) the Court
considered the case submitted for decision, in a Resolution dated September 21, 1967 (Rollo, p. 124).
Petitioners assign the following errors:
I.THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE 30-DAY PERIOD
PRESCRIBED IN ARTICLE 1088 OF THE NEW CIVIL CODE FOR A CO-HEIR TO EXERCISE HIS RIGHT
OF LEGAL REDEMPTION, HAD ALREADY ELAPSED WHEN THE HEREIN PLAINTIFFS FILED THE
ACTION ON MAY 7, 1955.
II.THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THERE WAS NO OFFER TO
REIMBURSE THE DEFENDANTS FOR THE PORTION OF THE LAND IN QUESTION SOLD TO THEM BY
THE CO-HEIRS OF THE PLAINTIFFS.
III.THE HONORABLE COURT OF APPEALS ERRED IN REVERSING THE JUDGMENT OF THE LOWER
COURT, AND IN NOT ADJUDGING DAMAGES, ATTORNEY'S FEES AND COSTS IN FAVOR OF THE
PLAINTIFFS."
(Brief for the Petitioners, p. 1)
There is no question that the provision of law applicable in the instant case is Art. 1088 of the New Civil
Code (Art. 1067, Old Civil Code) as the matter concerns heirs and inheritance not yet distributed
(Wenceslao v. Calimon, 46 Phil. 906 [1923]). Art. 1088 states:
"Article 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they were notified in writing of the sale by
the vendor."
The main issue is whether or not petitioners took all the necessary steps to effectuate their exercise of the
right of legal redemption within the period fixed by Art. 1088 of the Civil Code.
It is undisputed that no notification in writing was ever received by petitioners about the sale of the hereditary
interest of some of their co-heirs in the parcel of land they inherited from the late Gelacio Garcia, although in
a letter dated June 23, 1953 petitioner Francisco Garcia wrote one of his co-heirs, Joaquin Garcia, who is an
uncle of petitioners, proposing to buy the hereditary interests of his co-heirs in their unpartitioned
inheritance, (Exhibit, p. 3). Although said petitioner asked that his letter be answered "in order that I will
know the results of what I have requested you," (Exhibit, p. 14) there is no proof that he was favored with
one.
Petitioners came to know that their co-heirs were selling the property on December 3, 1954 when one of the
heirs, Juanito Bertomo, asked Petitioner Paz Garcia to sign a document prepared in the Municipality of
Tubungan because the land they inherited was going to be sold to private respondent, Jose Calaliman
(TSN, September 3, 1957, p. 60). The document mentioned by petitioner Paz Garcia could be no other than
the one entitled "Extra-Judicial Partition and Deed of Sale" dated December 3, 1954 as it is in this document
that the name of Paz Garcia, Maria Garcia and Amado Garcia appear unsigned by them (Exhibits, p. 19).
It is not known whether the other heirs whose names appear in the document had already signed the
document at the time Paz Garcia was approached by Juanito Bertomo. Paz Garcia, however, testified that

she immediately informed her brother Francisco that Juanita Bertomo wanted to sell the land to Jose
Calaliman (TSN, September 6, 1957, p. 62). On December 26, 1954 he wrote respondents giving them
notice of his desire to exercise the right of legal redemption and that he will resort to court action if denied
the right (Exhibits, p. 8). The respondents received the letter on January 13, 1955 but petitioner Francisco
Garcia did not get any answer from them. Neither did respondents show him a copy of the document of sale
nor inform him about the price they paid for the sale when he went home to Tubungan from Manila
sometime in March 1955 and went to see the respondent spouse about the matter on March 24, 1955 (TSN,
September 6, 1957, p. 18). LLpr
Because of the refusal of respondent Jose Calaliman to show him the document of sale or reveal to him the
price paid for the parcel of land, petitioner Francisco Garcia went to the Office of the Register of Deeds on
the same date, March 24, 1955 and there found two documents of sale regarding the same parcel of land
(TSN, Ibid, p. 19).
Petitioners filed the case for legal redemption with the trial court on May 7, 1955. Respondents claim that the
30-day period prescribed in Article 1088 of the New Civil Code for petitioners to exercise the right to legal
redemption had already elapsed at that time and that the requirement of Article 1088 of the New Civil Code
that notice must be in writing is deemed satisfied because written notice would be superfluous, the purpose
of the law having been fully served when petitioner Francisco Garcia went to the Office of the Register of
Deeds and saw for himself, read and understood the contents of the deeds of sale (Brief for respondents, p.
6).
The issue has been squarely settled in the case of Castillo v. Samonte, where this Court observed:
"Both the letter and spirit of the new Civil Code argue against any attempt to widen the scope of the notice
specified in Article 1088 by including therein any other kind of notice, such as verbal or by registration. If the
intention of the law had been to include verbal notice or any other means of information as sufficient to give
the effect of this notice, then there would have been no necessity or reasons to specify in Article 1088 of the
New Civil Code that the said notice be made in writing for, under the old law, a verbal notice or information
was sufficient (106 Phil. 1023 [1960])."
In the above-quoted decision the Court did not consider the registration of the deed of sale with the Register
of Deeds sufficient notice, most specially because the property involved was unregistered land, as in the
instant case. The Court took note of the fact that the registration of the deed of sale as sufficient notice of s
sale under the provision of Section 51 of Act No. 496 applies only to registered lands and has no application
whatsoever to a case where the property involved is, admittedly, unregistered land.
Consistent with aforesaid ruling, in the interpretation of a related provision (Article 1623 of the New Civil
Code) this Court had stressed that written notice is indispensable, actual knowledge of the sale acquired in
some other manners by the redemptioner, notwithstanding. He or she is still entitled to written notice, as
exacted by the Code, to remove all uncertainty as to the sale, its terms and its validity, and to quiet any
doubt that the alienation is not definitive. The law not having provided for any alternative, the method of
notifications remains exclusive, though the Code does not prescribe any particular form of written notice nor
any distinctive method for written notification of redemption (Conejero et al. v. Court of Appeals et al., 16
SCRA 775 [1966]; Etcuban v. Court of Appeals, 148 SCRA 607 [1987]; Cabrera v. Villanueva, G.R. No.
75069, April 15, 1988).
Petitioners fault the appellate court in not awarding them damages, attorney's fees and costs. After finding in
favor of respondent spouses and against petitioners herein it is untenable for petitioners to expect that the
appellate court would award damages and attorney's fees and costs. However as already discussed,
petitioners have not lost their right to redeem, for in the absence of a written notification of the sale by the
vendors, the 30-day period has not even begun to run. Petitioners clearly can claim attorney's fees for bad
faith on the part of respondents, first, for refusing redemption, and secondly for declaring the entire land as
theirs, although they knew some heirs had not sold their shares.
PREMISES CONSIDERED, the decision of the Court of Appeals is REVERSED and the decision of the trial
court is REINSTATED with the modification that petitioners be awarded damages, attorney's fees and costs
in the amount prayed for.
SO ORDERED.
||| (Garcia v. Calaliman, G.R. No. L-26855, April 17, 1989)

10

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH PRIEST OF
THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant, vs. BELINA RIGOR,
NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR DE FAUSTO,
respondents-appellees.||| n his will, the late Father Pascual Rigor of Victoria, Tarlac, devised forty-four
hectares of ricelands to his nearest male relative who would study for the priesthood and provided that the
administration of the ricelands would be under the responsibility of the parish priest of Victoria during the
time that there is no qualified devisee as contemplated in the will. During the testate proceedings, the trial
court approved the project of partition and directed the administratrix to deliver to the devisees their
respective shares. Inasmuch as no nearest male relative of the testator claimed the devise and as the
administratrix and the legal heirs believed that the parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to him. The latter, however, petitioned for delivery of the ricelands to
the church. The lower court, after first declaring the bequest inoperative, later reconsidered its findings in an
order, on the ground that the testator had a grandnephew (born after the testator's death), who was a
seminarian, and directed the administrator of the estate to deliver the ricelands to the parish priest of Victoria
as trustee. On appeal, the Court of Appeals reversed the order.
The Supreme Court ruled that the will referred to the nearest male relative of the testator who was living at
the time of his death and not to any indefinite time thereafter, because in order to be capacitated to inherit,
the devisee must be living at the moment the succession opens, except in case of representation, when it is
proper.
Decision affirmed.
SYLLABUS
1. TESTAMENTARY SUCCESSION; TESTATOR'S INTENT IS THE LAW OF THE CASE. In testamentary
succession cases, as in cases involving the law of contracts and statutory construction, where the intention
of the contracting parties or of the lawmaking body is to be ascertained, the primary issue is the
determination of the testator's intention which is the law of the case (dicat estor et eirt lex). The will of the
testator is the first and principal law in the matter of testaments. When his intention is clearly and precisely
expressed, any interpretation must be in accord with the plain and literal meaning of his words, except when
it may certainly appear that his intention was different from that literally expressed.
2. ID.; CAPACITY TO INHERIT. In order to be capacitated to inherit, the heir, devisee or legatee must be
living at the moment the succession opens, except in case of representation, when it is proper (Art. 1025,
Civil Code).
3. ID.; WHERE BEQUEST IS INOPERATIVE. If the bequest for any reason should be inoperative, it shall
be merged into the estate, except in cases of substitution and those in which the right of accretion exists
(Art. 956, New Civil Code). The Civil Code recognizes that a person may die partly testate and partly
intestate, or that there may be mixed succession. The old rule as to the indivisibility of the testator's will is no
longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to the
property covered by the said legacy.
4. ID.; WHERE WILL DOES NOT DIPOSE OF ALL PROPERTIES. Legal succession takes place when
the will "does not dispose of all that belongs to the testator (Art. 960(2), New Civil Code).
DECISION
AQUINO, J p:
This case is about the efficaciousness or enforceability of a devise of ricelands located at Guimba, Nueva
Ecija, with a total area of around forty-four hectares. That devise was made in the will of the late Father
Pascual Rigor, a native of Victoria, Tarlac, in favor of his nearest male relative who would study for the
priesthood. Cdpr
The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court from the
decision of the Court of Appeals affirming the order of the probate court declaring that the said devise was
inoperative (Rigor vs. Parish Priest of the Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-R,
August 1, 1963).
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935, leaving
a will executed on October 29, 1933 which was probated by the Court of First Instance of Tarlac in its order
of December 5, 1935. Named as devisees in the will were the testator's nearest relatives, namely, his three
sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The testator gave a
devise to his cousin, Fortunato Gamalinda.
In addition, the will contained the following controversial bequest (paragraphing supplied to facilitate
comprehension of the testamentary provisions):
"Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros, situados en el municipio de
Guimba de la provincia de NUEVA ECIJA, cuyo num. de CERTIFICADO DE TRANSFERENCIA DE TITULO
SON; Titulo Num. 6530, mide 16,249 m. cuadrados de superficie; Titulo Num. 6548, mide 242,998 m.
cuadrados de superficie; Titulo Num. 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num. 6521,
mide 119,251 m. cuadrados de superficie; a cualquier pariente mio varon mas cercano que estudie la
carrera eclesiastica hasta ordenarse de Presbiterado o sea Sacerdote; las condiciones de estate legado

11

son:
"(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de este legado;
"(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a gozar y
administrar de este legado al principiar a curzar la Sagrada Teologia, y ordenado de Sacerdote, hasta su
muerte; pero que pierde el legatario este derecho de administrar y gozar de este legado al dejar de
continuar sus estudios para ordenarse de Presbiterado (Sacerdote).
"Que el legatario una vez Sacerdote ya estara obligado a celebrar cada ao VEINTE (20) Misas rezadas en
sufragio de mi alma y de mis padres difuntos, y si el actual legatario, quedase excomulgado, IPSO FACTO
se el despoja este legado, y la administracion de esto pasara a cargo del actual Parroco y sus sucesores de
la Iglesia Catolica de Victoria, Tarlac.
"Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda expresado, pasara la
administracion de este legado a cargo del actual Parroco Catolico y sus sucesores, de Victoria, Tarlac.
"El Parroco administrador de estate legado, acumulara anualmente todos los productos que puede tener
estate legado, ganando o sacando de los productos anuales el CINCO (5) por ciento para su
administracion, y los derechos correspondientes de las VEINTE (20) Misas rezadas que debiera el Parroco
celebrar cada ao, depositando todo lo restante de los productos de estate legado, en un banco, a nombre
de estate legado."
To implement the foregoing bequest, the administratrix in 1940 submitted a project of partition
containing the following item:
"5. LEGACY OF THE CHURCH
"That it be adjudicated in favor of the legacy purported to be given to the nearest male relative who shall
take the priesthood, and in the interim to be administered by the actual Catholic Priest of the Roman
Catholic Church of Victoria, Tarlac, Philippines, or his successors, the real properties hereinbelow indicated,
to wit:
"Title No. Lot No. Area in Has. Tax Dec. Ass. Value
T-6530 3663 1.6249 18740 P340.00
T-6548 3445-C 24.2998 18730 7,290.00
T6525 3670 6.2665 18736 1,880.00 T-6521 3666 11.9251 18733 3,580.00 "Total area
and value 44.1163 P13,090.00"
Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition, directed that after
payment of the obligations of the estate (including the sum of P3,132.26 due to the church of the Victoria
parish) the administratrix should deliver to the devisees their respective shares.
It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning and
implications of Father Rigor's bequest to his nearest male relative who would study for the priesthood.
Inasmuch as no nephew of the testator claimed the devise and as the administratrix and the legal heirs
believed that the parish priest of Victoria had no right to administer the ricelands, the same were not
delivered to that ecclesiastic. The testate proceeding remained pending.
About thirteen years after the approval of the project of partition, or on February 19, 1954, the parish priest
of Victoria filed in the pending testate proceeding a petition praying for the appointment of a new
administrator (succeeding the deceased administratrix, Florencia Rigor), who should deliver to the church
the said ricelands, and further praying that the possessors thereof be ordered to render an accounting of the
fruits. The probate court granted the petition. A new administrator was appointed. On January 31, 1957 the
parish priest filed another petition for the delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that the bequest
be declared inoperative and that they be adjudged as the persons entitled to the said ricelands since, as
admitted by the parish priest of Victoria, "no nearest male relative of" the testator "has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal). That petition was opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino, declared the
bequest inoperative and adjudicated the ricelands to the testator's legal heirs in his order of June 28, 1957.
The parish priest filed two motions for reconsideration.
Judge De Aquino granted the second motion for reconsideration in his order of December 10, 1957 on the
ground that the testator had a grandnephew named Edgardo G. Cunanan (the grandson of his first cousin)
who was a seminarian in the San Jose Seminary of the Jesuit Fathers in Quezon City. The administrator
was directed to deliver the ricelands to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor had created
a testamentary trust for his nearest male relative who would take the holy orders but that such trust could
exist only for twenty years because to enforce it beyond that period would violate "the rule against
perpetuities". It ruled that since no legatee claimed the ricelands within twenty years after the testator's
death, the same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code and article
870 of the new Civil Code.
The parish priest in this appeal contends that the Court of Appeals erred in not finding that the testator
created a public charitable trust and in not liberally construing the testamentary provisions so as to render

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the trust operative and to prevent intestacy.


As refutation, the legal heirs argue that the Court of Appeals declared the bequest inoperative because no
one among the testator's nearest male relatives had studied for the priesthood and not because the trust
was a private charitable trust. According to the legal heirs, that factual finding is binding on this Court. They
point out that appellant priest's change of theory cannot be countenanced in this appeal. prLL
In this case, as in cases involving the law of contracts and statutory construction, where the intention of the
contracting parties or of the lawmaking body is to be ascertained, the primary issue is the determination of
the testator's intention which is the law of the case (dicat testor et erit lex. Santos vs. Manarang, 27 Phil.
209, 215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of testaments. When his intention is clearly
and precisely expressed, any interpretation must be in accord with the plain and literal meaning of his words,
except when it may certainly appear that his intention was different from that literally expressed (In re Estate
of Calderon, 26 Phil. 333).
"The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of a will". It is
"the first greatest rule, the sovereign guide, the polestar, in giving effect to a will". (See Dissent of Justice
Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be
ascertained from the words of the will, taking into consideration the circumstances under which it was
made", but excluding the testator's oral declarations as to his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be useful to make the following restatement of the provisions of
his will:
1. that he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an
ecclesiastical career until his ordination as a priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the
ricelands, and once ordained as a priest, he could continue enjoying and administering the same up to the
time of his death but the devisee would cease to enjoy and administer the ricelands if he discontinued his
studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate every year twenty masses with
prayers for the repose of the souls of Father Rigor and his parents.
5. That if the devisee is excommunicated, he would be divested of the legacy and the administration of the
ricelands would pass to the incumbent parish priest of Victoria and his successors.
6. That during the interval of time that there is no qualified devisee, as contemplated above, the
administration of the ricelands would be under the responsibility of the incumbent parish priest of Victoria
and his successors, and
7. That the parish priest-administrator of the ricelands would accumulate annually the products thereof,
obtaining or getting from the annual produce five percent thereof for his administration and the fees
corresponding to the twenty masses with prayers that the parish priest would celebrate for each year,
depositing the balance of the income of the devise in the bank in the name of his bequest.
From the foregoing testamentary provisions, it may be deduced that the testator intended to devise the
ricelands to his nearest male relative who would become a priest, who was forbidden to sell the ricelands,
who would lose the devise if he discontinued his studies for the priesthood, or having been ordained a priest,
he was excommunicated, and who would be obligated to say annually twenty masses with prayers for the
repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in two
situations: one, during the interval of time that no nearest male relative of the testator was studying for the
priesthood and two, in case the testator's nephew became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado", or how long
after the testator's death would it be determined that he had a nephew who would pursue an ecclesiastical
vocation. It is that patent ambiguity that has brought about the controversy between the parish priest of
Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the nearest male relative who would study for the
priesthood should be determined. Did the testator contemplate only his nearest male relative at the time of
his death? Or did he have in mind any of his nearest male relatives at anytime after his death?
We hold that the said bequest refers to the testator's nearest male relative living at the time of his death and
not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee or legatee must
be living at the moment the succession opens, except in case of representation, when it is proper" (Art.
1025, Civil Code). LLjur
The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring
to the testator's nearest male relative at anytime after his death would render the provisions difficult to apply
and create uncertainty as to the disposition of his estate. That could not have been his intention.

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In 1935, when the testator died, his nearest legal heirs were his three sisters or second-degree relatives,
Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified his nearest male
relative, he must have had in mind his nephew or a son of his sister, who would be his third-degree relative,
or possibly a grandnephew. But since he could not prognosticate the exact date of his death or state with
certitude what category of nearest male relative would be living at the time of his death, he could not specify
that his nearest male relative would be his nephew or grandnephews (the sons of his nephew or niece) and
so he had to use the term "nearest male relative".
It is contended by the legal heirs that the said devise was in reality intended for Ramon Quiambao, the
testator's nephew and godchild, who was the son of his sister, Mrs. Quiambao. To prove that contention, the
legal heirs presented in the lower court the affidavit of Beatriz Gamalinda, the maternal grandmother of
Edgardo Cunanan, who deposed that after Father Rigor's death, her own son, Valentin Gamalinda, Jr., did
not claim the devise, although he was studying for the priesthood at the San Carlos Seminary, because she
(Beatriz) knew that Father Rigor had intended that devise for his nearest male relative belonging to the
Rigor family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the one
contemplated in Father Rigor's will and that Edgardo's father told her that he was not consulted by the parish
priest of Victoria before the latter filed his second motion for reconsideration which was based on the ground
that the testator's grandnephew, Edgardo, was studying for the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961. For that
reason, the legal heirs apprised the Court of Appeals that the probate court's order adjudicating the ricelands
to the parish priest of Victoria had no more leg to stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's intention
and which is hearsay, has no probative value. Our opinion that the said bequest refers to the testator's
nephew who was living at the time of his death, when his succession was opened and the successional
rights to his estate became vested, rests on a judicious and unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la carrera
eclesiastica" would include indefinitely anyone of his nearest male relatives born after his death, he could
have so specified in his will. He must have known that such a broad provision would suspend for an
unlimited period of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya legatario acondicionado"? The
reasonable view is that he was referring to a situation whereby his nephew living at the time of his death,
who would like to become a priest, was still in grade school or in high school or was not yet in the seminary.
In that case, the parish priest of Victoria would administer the ricelands before the nephew entered the
seminary. But the moment the testator's nephew entered the seminary, then he would be entitled to enjoy
and administer the ricelands and receive the fruits thereof. In that event, the trusteeship would be
terminated.
Following that interpretation of the will, the inquiry would be whether at the time Father Rigor died in 1935 he
had a nephew who was studying for the priesthood or who had manifested his desire to follow the
ecclesiastical career. That query is categorically answered in paragraph 4 of appellant priest's petitions of
February 19, 1954 and January 31, 1957. He unequivocally alleged therein that "no nearest male relative of
the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion
is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands
by the parish priest of Victoria, as envisaged in the will, was likewise inoperative.
The appellant in contending that a public charitable trust was constituted by the testator in is favor assumes
that he was a trustee or a substitute devisee. That contention is untenable. A reading of the testamentary
provisions regarding the disputed bequest not support the view that the parish priest of Victoria was a
trustee or a substitute devisee in the event that the testator was not survived by a nephew who became a
priest.
It should be understood that the parish priest of Victoria could become a trustee only when the testator's
nephew living at the time of his death, who desired to become a priest, had not yet entered the seminary or,
having been ordained a priest, he was excommunicated. Those two contingencies did not arise, and could
not have arisen, in this case because no nephew of the testator manifested any intention to enter the
seminary or ever became a priest.
The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code, now article
956, which provides that if "the bequest for any reason should be inoperative, it shall be merged into the
estate, except in cases of substitution and those in which the right of accretion exists" ("el legado . . . por
qualquier causa, no tenga efecto, se refundir en la masa de la herencia, fuera de los casos de sustitucion y
derecho de acrecer").
This case is also covered by article 912(2) of the old Civil Code, now article 960(2), which provides that legal
succession takes place when the will "does not dispose of all that belongs to the testator." There being no

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substitution nor accretion as to the said ricelands, the same should be distributed among the testator's legal
heirs. The effect is as if the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be
mixed succession. The old rule as to the indivisibility of the testator's will is no longer valid. Thus, if a
conditional legacy does not take effect, there will be intestate succession as to the property covered by the
said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267). prcd
||| (Testate Estate of Rigor v. Rigor, G.R. No. L-22036, April 30, 1979)

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