11.

Casiano v Maloto

Nietes, ed he diamond partition

extrajudicial on March 21, 1964. 3

on

March

approve

G.R. No. L-32328 September 30, 1977

TESTATE ESTATE OF THE LATE ADRIANO MALOTO:
ALDINA MALOTO CASIANO, CONSTANCIO MALOTO,
PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH
OF MOLO, and ASILO DE MOLO, petitioners-appellants
vs.
FELINO MALOTO and FELINO MALOTO, oppositorsappellees.
FERNANDEZ, J.:
This is a petition to review the order dated April 13, 1970 of
the Court of First Instance of Iloilo, Branch III, in Special
Proceeding No. 2176 dismissing the petition for the probate
of a will. 1
One Adriana Maloto died on October 20, 1963 in Iloilo City,
her place of residence.
Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto,
and Felino Maloto, niece and nephews, respectively, of
Adriana Maloto, in the belief that decedent died intestate,
commenced on November 4, 1963 in the Court of First
Instance of iloilo an intestate proceeding docketed as
Special Proceeding No. 1736. In the course of said intestate
proceeding, Aldina Maloto Casiano, Constancio Maloto,
Panfilo Maloto and Felino Maloto executed an extrajudicial
Partition of the estate of Adriana Maloto on February 1, 1964
whereby they adjudicated said estate unto themselves in
the proportion of one-fourth (1/4) share for each. 2 The Court
of First Instance of iloilo, then prescribed by Judge Emigdio V.

On April 1, 1967, a document dated January 3, 1940

purporting to be the last with and testament of Adriana
Maloto was delivered to the Clerk of Art of the Art of First
Instant of Iloilo. 4 It appears that Aldina Maloto Casiano
Consent Maloto, Panfilo Maloto, and Felino Maloto are named
as heirs but Maloto Casiano and Constancio Maloto allegedly
have shares in said with which are bigger, different and
more valuable than what they obtained in the extrajudicial
partition. The said will also allegedly made dispositions to
certain devisees and/or legatees, among whom being the
Asilo de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
On May 24, 1967, Aldina Maloto Casiano and Constancio
Maloto filed in Special Proceeding No. 1736 a motion (1) for
reconsideration; (2) annulment of the proceedings; and (3)
for the allowance of the last will and testament of Adriana
Maloto. 5 The Asilo de Molo, the Roman Catholic Church of
Molo, and Purificacion Miraflor also filed in Special
Proceeding No. 1736 petitions for the allowance of the will of
Adriana Maloto. 6
Panfilo Maloto and Felino Maloto opposed the motion of
Aldina Maloto Casiano and Constancio Maloto.
The Court of First Instance of iloilo, through Judge Emigdio V.
Nietes, issued an order dated November 16, 1968 denying
the motion to reopen the proceedings on the ground that
the said motion had been filed out of time. A motion for
reconsideration of said order was denied. Petitioners
appealed from the order of denial. On motion of Panfilo
Maloto and Felino Maloto, the lower court dismissed the

appeal on the ground that it was filed late. A motion for

reconsideration of the order of dismissal was denied. A
supplemental order dated April 1, 1969 stating as additional
ground that the appeal is improper was issued.
The petitioners filed a petition for certiorari and mandamus
with the Supreme Court docketed as G.R. No. L-30479. This
Court dismissed the petition in a resolution dated May 14,
1969 which reads:
L-010479 (Constancio Maloto, et al, vs. Hon.
Emigdio V. Nietes, etc., et al.) THE COURT
RESOLVED to dismiss the petition for certiorari
and mandamus, without passing on the issue
of whether or not the petitioners appeal from
the order of November 16, 1968 of
respondent Judge was made on time, it
appearing that the more appropriate remedy
of petitioners in the premises stated in the
petition is for petitioners to initiate a separate
proceeding for the probate of the alleged will
in question. 7
Acting on the petitioners' motion for reconsideration and
citation, fl Art issued a resolution dated July 15, 1969 which
reads:
Acting on the motion for reconsideration
and/or clarification filed by petitioner in G. R.
No. L-30479, Constancio Maloto, et al., vs.
Hon. Emigdio V. Nietes, etc. et al., dated June
11, 1969, the Court resolved to DENY the
motion
for
reconsideration,
with
the
clarification that the matter of whether or not
the pertinent findings of facts of respondent
Judge in his herein subject order of November

16, 1968 constitute res adjudicata may be

raised in the proceedings for probate of the
alleged will in question indicated in the
resolution of this Court of May 14, 1969,
wherein
such
matter
will
be
more
appropriately determined. 8
Thereupon, the herein petitioners commenced Special
Proceeding No. 2176 in the Court of First Instance of Iloilo for
the probate of the alleged last will and testament of Adriana
Maloto. 9
Panfilo Maloto and Felino Maloto filed an opposition with a
motion to dismiss on the following grounds:
I. THAT THE ALLEGED WILL SOUGHT TO BE
PROBATED HAD BEEN DESTROYED AND
REVOKED BY THE TESTATRIX.
II. THAT THE INSTANT PETITION FOR PROBATE
IS NOW BARRED BY PRIOR JUDGMENT OR
ORDER (OR RES JUDICATA).
III. THAT THE ESTATE OF THE LATE ADRIANA
MALOTO HAD ALREADY PASSED OUT OF
EXISTENCE
AND
TITLE
THERETO
HAD
ALREADY ARRESTED IN THE DISTRIBUTEES OF
THEIR ASSIGNS.
IV. THAT PETITIONERS ALDINA MALOTO
CASIANO AND CONSTANCIO MALOTO ARE
NOW ESTOPPED FROM SEEKING THE REMEDY
TENDER THIS PROCEEDING, THEY HAVING
CEASED TO BE INTERESTED PARTIES. 10

In an order dated April 13, 1970, the probate court

dismissed the petition for the probate of the with on the
basis of the finding of said court in Special Proceeding No.
1736 that the alleged win sought to be Probated had been
destroyed and revoked by the testatrix. The probate court
sustained the oppositors' contention that the petition for
probate is now barred by the order of November 16, 1968 in
the intestate estate proceeding, Special Proceeding No.
1736. 11
The herein petitioners allege
committed the following errors:

that

the

probate

court

I
THE LOWER COURT ERRED IN HOLDING THAT
THE .kl).NIITTEI)I,Y GENUINE LAST WILL AND
TESTAMENT OF THE LATE ADRIANA MALOTO
(THE SUBJECT OF PETITION FOR PROBATE
SPECIAL PROCEEDING NO. 2176, CFI ILOILO)
HAD PREVIOUSLY BEEN REVOKED BY HER
(ADRIANA MALOTO).
II
THE LOWER COURT ERRED IN HOLDING THAT
SAID PETITION (FOR PROBATE OF THE
AFORESAID LAST WILL AND TESTAMENT OF
THE LATE ADRIANA MALOTO) IS NOW BARRED
BY PRIOR JUDGMENT. I. E., THAT THE MATTER
CONCERNED IS NOW RES ADJUDICATA
III

THE LOWER COURT, THEREFORE, ERRED IN

DISMISSING THE AFORESAID PETITION FOR
PROBATE OF THE LAST WILL AND TESTAMENT
OF THE LATE ADRIANA MALOTO AND IN NOT,
INSTEAD, GIVING IT (THE PETITION ABOVECITED DUE COURSE.12
The instant petition for review is meritorious.
The probate court had no jurisdiction to entertain the
petition for the probate of the alleged with of Adriana Maloto
in Special Proceeding No. 1736. Indeed, the motion to
reopen the was denied because the same was filed out of
time. Moreover, it is not proper to make a finding in an
intestate estate proceeding that the discovered will has
been revoked. As a matter of fact, the probate court in
Special Proceeding No. 1736 stated in the order of
November 16, 1968 that "Movants should have filed a
separate action for the probate of the Will." 13 And this court
stated in its resolution of May 14, 1969 that "The more
appropriate remedy of the petitioners in the premises stated
in the petition is for petitioners to initiate a separate
proceeding for the probate of the alleged with in question."
In view of the foregoing, the order of November 16, 1968 in
Special Proceeding No. 1736 is not a bar to the present
petition for the probate of the alleged will of Adriana Maloto.
WHEREFORE, the order dated April 13, 1970 dismissing the
petition for the probate of the alleged will of Adriana Maloto
is hereby set aside and the lower court is directed to
proceed with the hearing of the petition in Special
Proceeding No. 2176 on the merits, with costs against the
respondents.

HON. JOSE R. RAMOLETE, Presiding Judge of the Court

of First Instance of Cebu, Branch III, DOMINGO L.
ANTIGUA and SEGUNDO ZAMBO, respondents.
GUTIERREZ, JR., J.:
The sole issue in this petition for certiorari is whether or not
a probate court has jurisdiction over parcels of land already
covered by a Transfer Certificate of Title issued in favor of
owners who are not parties to the intestate proceedings if
the said parcels have been included in the inventory of
properties of the estate prepared by the administrator.
For a clearer understanding of the present case, the
background facts may be appreciated. As far back as 1961,
Marciano Cuizon applied for the registration of several
parcels of land located at Opao, Mandaue City then covered
by certificates of Tax Declaration in Land Registration Case
No. N-179. In 1970, he distributed his property between his
two children, Rufina and Irene. Part of the property given to
Irene consisted largely of salt beds which eventually became
the subject of this controversy.

G.R. No. L-51291 May 29, 1984

On December 29, 1971, Irene Cuizon executed a Deed of

Sale with Reservation of Usufruct involving the said salt
beds in favor of the petitioners Francisco, Rosita and
Purificacion, all surnamed Cuizon. At that time, Francisco
and Rosita were minors and assisted by their mother,
Rufina, only sister of Irene. However, the sale was not
registered because the petitioners felt it was unnecessary
due to the lifetime usufructuary rights of Irene.

FRANCISCO CUIZON, ROSITA CUIZON, PURIFICATION

C. GUIDO married to TEODORO GUIDO, and JUAN
ARCHE, petitioners,
vs.

Although the decision in L.R. Case No. N-179 was rendered

way back in 1962, the decree of registration No. N-161246
and the corresponding Original Certificate of Title No. 0171
was issued only in 1976 in the name of Marciano Cuizon. In

12. Cuizon v Ramalote

that same year, Transfer Certificate of Title No. 10477

covering the property in question was issued by the Register
of Deeds to Irene Cuizon. The latter died in 1978. In the
extrajudicial settlement of the estate, her alleged half sister
and sole heir Rufina adjudicated to herself all the property of
the decedent including the property in question. After the
notice of the extrajudicial settlement was duly published in a
newspaper of general circulation, Rufina thereafter,
executed a deed of Confirmation of Sale wherein she
confirmed and ratified the deed of sale of December 29,
1971 executed by the late Irene and renounced and waived
whatever rights, interest, and participation she may have in
the property in question in favor of the petitioners. The deed
was duly registered with the Registry of Deeds and
annotated at the back of TCT No. 10477. Subsequently, TCT
No. 12665 was issued in favor of the petitioners.
On September 28, 1978, a petition for letters of
administrator was filed before the Court of First Instance of
Cebu (Sp. Proc. No. 3864-R) by respondent Domingo
Antigua, allegedly selected by the heirs of Irene numbering
seventeen (17) in all to act as administrator of the estate of
the decedent. The petition was granted.
Respondent Antigua as administrator filed an inventory of
the estate of Irene. He included in the inventory the
property in question which was being administered by Juan
Arche, one of the petitioners. On June 27, 1979, respondent
Antigua filed a motion asking the court for authority to sell
the salt from the property and praying that petitioner Arche
be ordered to deliver the salt to the administrator. The
motion was granted and respondent court issued the
following order:
The administrator, thru this motion, informs
the Court that the estate owns some beds and

fish pond located in Opao, Mandaue City that

these salt beds are producing salt which are
now in the warehouse in Mandaue City, under
the custody of Juan Arche that the value of
the salt in the warehouse is estimated to be
worth P5,000.00 are beginning to melt and,
unless they are sold as soon as possible, they
may depreciate in value. It is likewise prayed
in this motion that Juan Arche be ordered to
deliver the salt in question to the
administrator such other products of the land
now in his (Juan Arche) possession.
xxx xxx xxx
Let this motion be, as it is hereby GRANTED.
The administrator is hereby authorized to sell
the salt now in the custody of Juan Arche and
the latter (Juan Arche) is hereby ordered to
deliver the salt in question to the
administrator in order to effect the sale
thereof and he is likewise directed to deliver
such other products of the land to the
administrator.
Subsequently, on three different occasions, respondent
Segundo Zambo with the aid of several men, sought to
enforce the order of the respondent court, compelling the
petitioners to come to us on certiorari. On September 14,
1979, we issued a restraining order enjoining the
respondents from enforcing the above order of the
respondent court and from further interfering with the
petitioners in their peaceful possession and cultivation of
the property in question.

The thrust of the petitioners' argument is that the

respondent court, as a court handling only the intestate
proceedings, had neither the authority to adjudicate
controverted rights nor to divest them of their possession
and ownership of the property in question and hand over the
same to the administrator. Petitioners further contend that
the proper remedy of the respondent administrator is to file
a separate civil action to recover the same.
On the other hand, the respondent administrator banked on
the failure of the petitioners to first apply for relief in the
court of origin before filing the present petition. According to
him this was a fatal defect. In addition, the administrator
stated that the deed of sale of December 29, 1971 lost its
efficacy upon the rendition of judgment and issuance of the
decree in favor of Irene Cuizon.
It is a well-settled rule that a probate court or one in charge
of proceedings whether testate or intestate cannot
adjudicate or determine title to properties claimed to be a
part of the estate and which are equally (claimed to belong
to outside parties. All that the said court could do as regards
said properties is to determine whether they should or
should not be included in the inventory or list of properties
to be administered by the administrator. If there is no
dispute, well and good; but if there is, then the parties, the
administrator, and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so
(Mallari v. Mallari, 92 Phil. 694; Baquial v. Amihan, 92 Phil.
501).
Similarly, in Valero Vda. de Rodriguez vs. CA., (91 SCRA 540)
we held that for the purpose of determining whether a
certain property should or should not be included in the
inventory the probate court may pass upon the title thereto

but such determination is not conclusive and is subject to

the final decision in a separate a petition regarding
ownership which may be instituted by the parties (3 Moran's
Comments on the Rules of Court, 1970 Edition, pages 448-9
and 473: Lachenal v. Salas, L-42257, June 14, 1976, 71 SCRA
262, 266).
In the instant case, the property involved is not only claimed
by outside parties but it, was sold seven years before the
death of the decedent and is duly titled in the name of the
vendees who are not party to the proceedings. InBolisay
vs. Alcid, (85 SCRA 213), this Court was confronted with a
similar situation. The petitioners therein sought to annul the
order of the respondent court in a special proceeding which
in effect ruled that notwithstanding that the subject property
was duly titled in the name of petitioners, the administratrix
of the intestate estate involved in said proceeding had the
right to collect the rentals of said property over the
objection of the titled owners just because it was included in
the inventory of said estate and there was an ordinary
action in the regular court over the ownership thereof and
the estate was one of the parties therein. This Court viewed
the petition as one seeking for a prima faciedetermination
and not a final resolution of the claim of ownership.
We held that:
... Considering that as aforestated the said
property is titled under the Torrens System in
the names of the petitioners, it does appear
strange, in the light of the probate court's own
ruling that it has no jurisdiction to pass on the
issue of ownership, that the same court
deemed the same as part of the estate under
administration
just
because
the
administratrix, alleges it is still owned by the

estate and has in fact listed it in the inventory

submitted by her to the court.
It does not matter that respondent administratrix has evidence purporting to
support her claim of ownership, for, on the
other hand, petitioners have a Torrens title in
their favor, which under the law is endowed
with incontestability until after it has been set
aside in the manner indicated in the law itself,
which, of course, does not include, bringing
up the matter as a mere incident in special
proceedings for the settlement of the estate
of deceased persons. In other words, in Our
considered view, the mere inclusion in the
inventory submitted by the administrator of
the estate of a deceased person of a given
property does not of itself deprive the probate
court of authority to inquire into the property
of such inclusion in case an heir or a third
party claims adverse title thereto. To hold
otherwise would render inutile the power of
that
court
to
make
a prima
facie determination of the issue of ownership
recognized in the above quoted precedents.
The correct rule is that the probate court
should
resolve
the
issue
before
it
provisionally, as basis for its inclusion in or
exclusion from the inventory. It does not even
matter that the issue is raised after approval
of the inventory because "apparently, it is not
necessary that the inventory and appraisal be
approved by the Court." (Francisco on the
Rules of Court Vol. V-B, p. 99, citing Siy Chong
Keng vs. Collector of Internal Revenue, 60
Phil. 494)

In regard to such incident of inclusion or

exclusion, We hold that if a property covered
by Torrens Title is involved, the presumptive
conclusiveness of such title should be given
due weight, and in the absence of strong
compelling evidence to the contrary, the
holder thereof should be considered as the
owner of the property in controversy until his
title is nullified or modified in an appropriate
ordinary action, particularly, when as in the
case at bar, possession of the property itself is
in the persons named in the title.
Having been apprised of the fact that the property in
question was in the possession of third parties and more
important, covered by a transfer certificate of title issued in
the name of such third parties, the respondent court should
have denied the motion of the respondent administrator and
excluded the property in question from the inventory of the
property of the estate. It had no authority to deprive such
third persons of their possession and ownership of the
property. Respondent court was clearly without jurisdiction
to issue the order of June 27, 1979. Thus, it was
unnecessary for the petitioners to first apply for relief with
the intestate court.
Even assuming the truth of the private respondents'
allegations that the sale of December 29, 1971 was effected
under suspicious circumstances and tainted with fraud and
that the right of Rufina as alleged half-sister and sole heir of
Irene remains open to question, these issues may only be
threshed out in a separate civil action filed by the
respondent administrator against the petitioners and not in
the intestate proceedings.

WHEREFORE, the petition for certiorari is GRANTED and the

respondent court's order dated June 27, 1979 is hereby set
aside and declared void as issued in excess of its
jurisdiction. Our restraining order enjoining the enforcement
of the June 27, 1979 order and the respondents from further
interfering, through the intestate proceedings, in the
peaceful possession and cultivation of the land in question
by the petitioners is hereby made PERMANENT.

13. Bernardo v CA
G.R. No. L-18148

February 28, 1963

DEOGRACIAS BERNARDO, executor of the testate

estate of the deceased EUSEBIO CAPILI; and the
instituted heirs, namely: ARMANDO CAPILI and
ARTURO BERNARDO, ET AL., petitioners,
vs.
HON. COURT OF APPEALS and THE HEIRS OF THE LATE
HERMOGENA REYES, namely: FRANCISCO REYES, ET
AL., and JOSE ISIDORO, ET AL., respondents.

Ambrosio
Padilla
Law
Offices
Romerico F. Flores for respondents.

for

petitioners.

BARRERA, J.:
This is a petition by certiorari for the review of the decision
of the Court of Appeals affirming that of the Court of First
Instance of Bulacan holding that the probate court in Special
Proceeding 1101 had jurisdiction to determine the validity of
the deed of donation in question and to pass upon the
question of title or ownership of the properties mentioned
therein.
The facts are briefly stated in the appealed decision of the
Court of Appeals as follows:
Eusebio Capili and Hermogena Reyes were husband
and wife. The first died on July 27, 1958 and a testate
proceeding for the settlement of his estate was
instituted in the Court of the Fist Instance of Bulacan.
His will was admitted to probate on October 9, 1958,
disposing of his properties in favor of his widow; his
cousins Armando, Ursula, and Buenaventura, all
surnamed Capili; and Arturo, Deogracias and
Eduardo, all surnamed Bernardo. Hermogena Reyes
herself died on April 24, 1959. Upon petition of
Deogracias Bernardo, executor of the estate of the
deceased Eusebio Capili, she was substituted by her
collateral relatives and intestate heirs, namely,
Marcos, Vicente, Francisco and Dominga, all
surnamed Reyes; and Jose, Constancia, Raymunda
and Elena, all surnamed Isidoro.
On June 12, 1959, the executor filed a project of
partition in the testate proceeding in accordance with
the terms of the will, adjudicating the estate of

Eusebio Capili among the testamentary heirs with the

exception of Hermogena Reyes, whose share was
alloted to her collateral relatives aforementioned. On
June 16, 1959 these relatives filed an opposition to
the executor's project of partition and submitted a
counter-project of partition of their own, claiming 1/2
of the properties mentioned in the will of the
deceased Eusebio Capili on the theory that they
belonged not to the latter alone but to the conjugal
partnership of the spouses.
The probate court, in two orders dated June 24, 1959
and February 10, 1960, respectively, set the two
projects of partition for hearing, at which evidence
was presented by the parties, followed by the
submission of memoranda discussing certain legal
issues. In the memorandum for the executor and the
instituted heirs it was contended: (1) that the
properties disposed of in the will of the deceased
Eusebio Capili belonged to him exclusively and not to
the conjugal partnership, because Hermogena Reyes
had donated to him her half share of such
partnership; (2) that the collateral heirs of
Hermogena Reyes had no lawful standing or grounds
to question the validity of the donation; and (3) that
even assuming that they could question the validity
of the donation, the same must be litigated not in the
testate proceeding but in a separate civil action.
Wherefore, the parties respectfully pray that the
foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice
to the parties adducing other evidence to prove their
case
not
covered
by
this
stipulation
of
facts. 1wph1.t

The oppositors and heirs of Hermogena Reyes, on

their part, argued that the deed of donation itself was
determinative of the original conjugal character to
the properties, aside from the legal presumption laid
down in Article 160 of the Civil Code, and that since
the donation was null and void the deceased Eusebio
Capili did not become owner of the share of his wife
and therefore could not validly dispose of it in his
will.
On September 14, 1960, the probate court, the
Honorable M. Mejia presiding, issued an order
declaring the donation void without making any
specific finding as to its juridical nature, that is,
whether it was inter vivos or mortis causa, for the
reason that, considered under the first category, it
falls under Article 133 of the Civil Code, which
prohibits donations between spouses during the
marriage; and considered under the second category,
it does not comply with the formalities of a will as
required by Article 728 in relation to Article 805 of
the same Code, there being no attestation clause. In
the same order the court disapproved both projects
of partition and directed the executor to file another,"
dividing the property mentioned in the last will and
testament of the deceased Eusebio Capili and the
properties mentioned in the deed of donation, Exhibit
B, between the instituted heirs of the deceased
Eusebio Capili and the legal heirs of the deceased
Hermogena Reyes, upon the basis that the said
properties were conjugal properties of the deceased
spouses." On September 27, 1960, the executor filed
a motion for new trial, reiterating and emphasizing
the
contention
previously
raised
in
their
memorandum that the probate court had no
jurisdiction to take cognizance of the claim of the

legal heirs of Hermogena Reyes involving title to the

properties mentioned in the will of Eusebio Capili and
taking exception to the court's declaration of the
nullity of the donation "without stating facts or
provision of law on which it was based." The motion
for new trial was denied in an order dated October 3,
1960.
On appeal to the Court of Appeals the order appealed from
being affirmed, petitioners filed this present petition for
review by certiorari.
The petitioners-appellants contend that the appellate court
erred in not declaring that the probate court, having limited
and special jurisdiction, had generally no power to
adjudicate title and erred in applying the exception to the
rule.
In a line of decisions, this Court consistently held that as a
general rule, question as to title to property cannot be
passed upon on testate or intestate proceedings," 1 except
where one of the parties prays merely for the inclusion or
exclusion from the inventory of the property, in which case
the probate court may pass provisionally upon the question
without prejudice to its final determination in a separate
action.2 However, we have also held that when the parties
interested are all heirs of the deceased, it is optional to
them to submit to the probate court a question as to title to
property, and when so submitted, said probate court may
definitely pass judgment thereon (Pascual v. Pascual, 73
Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that
with the consent of the parties, matters affecting property
under judicial administration may be taken cognizance of by
the court in the course of intestate proceeding, provided
interests of third persons are not prejudiced (Cunanan v.
Amparo, 80 Phil. 229, 232).

In the light of this doctrine, may it be said correctly that the

trial court as well as the Court of Appeals erred in upholding
the power of the probate court in this case to adjudicate in
the testate proceedings, the question as to whether the
properties herein involved belong to the conjugal
partnership of Eusebio Capili and Hermogena Reyes, or to
the deceased husband exclusively?
At the outset, let it be clarified that the matter at issue is not
a question of jurisdiction, in the sense advanced by
appellants that the trial court had completely no authority to
pass upon the title to the lands in dispute, and that its
decision on the subject is null and void and does not bind
even those who had invoked its authority and submitted to
its decision because, it is contended, jurisdiction is a
creature of law and parties to an action can not vest, extend
or broaden it. If appellants' contention is correct, then there
can be no exception to the no-jurisdiction theory. But as has
been stated in the case of Cunanan v. Amparo (supra) the
Supreme Court speaking through Mr. Justice Pedro Tuason:
"Determination of title to property is within the jurisdiction
of Courts of First Instance. The responding Soriano's
objection (that the probate court lacked jurisdiction to order
the delivery of the possession of the lots to the estate)
relates exclusively to the procedure, which is distinct from
jurisdiction. It affects only personal rights to a mode of
practice (the filing of an independent ordinary action) which
may be waived". Strictly speaking, it is more a question of
jurisdiction over the person, not over the subject matter, for
the jurisdiction to try controversies between heirs of a
deceased person regarding the ownership of properties
alleged to belong to his estate, has been recognized to be
vested in probate courts. This is so because the purpose of
an administration proceeding is the liquidation of the estate
and distribution of the residue among the heirs and
legatees. Liquidation means determination of all the assets

of the estate and payment of all the debts and

expenses.3 Thereafter, distribution is made of the decedent's
liquidated estate among the persons entitled to succeed
him. The proceeding is in the nature of an action of partition,
in which each party is required to bring into the mass
whatever community property he has in his possession. To
this end, and as a necessary corollary, the interested parties
may introduce proofs relative to the ownership of the
properties in dispute. All the heirs who take part in the
distribution of the decedent's estate are before the court,
and subject to the jurisdiction thereof, in all matters and
incidents necessary to the complete settlement of such
estate, so long as no interests of third parties are affected.4
In the case now before us, the matter in controversy is the
question of ownership of certain of the properties involved
whether they belong to the conjugal partnership or to the
husband exclusively. This is a matter properly within the
jurisdiction of the probate court which necessarily has to
liquidate the conjugal partnership in order to determine the
estate of the decedent which is to be distributed among his
heirs who are all parties to the proceedings, including, of
course, the widow, now represented because of her death,
by her heirs who have been substituted upon petition of the
executor himself and who have appeared voluntarily. There
are no third parties whose rights may be affected. It is true
that the heirs of the deceased widow are not heirs of the
testator-husband, but the widow is, in addition to her own
right to the conjugal property. And it is this right that is
being sought to be enforced by her substitutes. Therefore,
the claim that is being asserted is one belonging to an heir
to the testator and, consequently, it complies with the
requirement of the exception that the parties interested (the
petitioners and the widow, represented by dents) are all
heirs claiming title under the testator.

Petitioners contend additionally that they have never

submitted themselves to the jurisdiction of the probate
court, for the purpose of the determination of the question
of ownership of the disputed properties. This is not borne by
the admitted facts. On the contrary, it is undisputed that
they were the ones who presented the project of partition
claiming the questioned properties as part of the testator's
asset. The respondents, as representatives or substitutes of
the deceased widow opposed the project of partition and
submitted another. As the Court of Appeals said, "In doing so
all of them must be deemed to have submitted the issue for
resolution in the same proceeding. Certainly, the petitioners
can not be heard to insist, as they do, on the approval of
their project of partition and, thus, have the court take it for
granted that their theory as to the character of the
properties is correct, entirely without regard to the
opposition of the respondents". In other words, by
presenting their project of partition including therein the
disputed lands (upon the claim that they were donated by
the wife to her husband), petitioners themselves put in issue
the question of ownership of the properties which is well
within the competence of the probate court and just
because of an opposition thereto, they can not thereafter
withdraw either their appearance or the issue from the
jurisdiction of the court. Certainly, there is here a waiver
where the parties who raise the objection are the ones who
set the court in motion.5 They can not be permitted to
complain if the court, after due hearing, adjudges question
against them.6
Finally, petitioners-appellants claim that appellees are
estopped to raise the question of ownership of the
properties involved because the widow herself, during her
lifetime, not only did not object to the inclusion of these
properties in the inventory of the assets of her deceased
husband, but also signed an extra-judicial partition of those

inventoried properties. But the very authorities cited by

appellants require that to constitute estoppel, the actor
must have knowledge of the facts and be appraised of his
rights at the time he performs the act constituting estoppel,
because silence without knowledge works no estoppel. 7 In
the present case, the deceased widow acted as she did
because of the deed of donation she executed in favor of
her husband not knowing that such deed was illegal, if intervivos, and ineffectual if mortis-causa, as it has not been
executed with the required formalities similar to a will.
WHEREFORE, the decision of the Court of Appeals being in
accordance with law, the same is hereby affirmed with costs
against appellants. So ordered.

Norberto J. Quisumbing for petitioner.

Taada, Teehankee & Carreon for respondents.
DIZON, J.:
On October 3, 1963 petitioner Vicente Uriarte filed an
original petition for certiorari docketed as G.R. L-21938
against the respondents Juan Uriarte Zamacona, Higinio
Uriarte, and the Courts of First Instance of Negros Occidental
and of Manila, Branch IV, who will be referred to hereinafter
as the Negros Court and the Manila Court, respectively
praying:

14. Uriarte v CFI

G.R. Nos. L-21938-39 May 29, 1970
VICENTE URIARTE, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF NEGROS
OCCIDENTAL (12th Judicial District) THE COURT OF
FIRST INSTANCE OF MANILA, BRANCH IV, JUAN
URIARTE ZAMACONA and HIGINIO
URIARTE, respondents.

... that after due proceedings judgment be

rendered annulling the orders of 19 April 1963
(Annex 'H') and 11 July 1963 (Annex 'I') of
respondent Negros court dismissing the first
instituted Special Proceeding No. 6344, supra,
and the order of 1 July 1963 (Annex 'K') of
respondent
Manila
court
denying
petitioner's omnibus motion to intervene and
to
dismiss
the
later-instituted
Special
Proceeding No. 51396, supra, both special
proceedings pertaining to the settlement of
the same estate of the same deceased, and
consequently annulling all proceedings had in
Special Proceeding No. 51396; supra, of the
respondent Manila court as all taken without
jurisdiction.
For the preservation of the rights of the
parties pending these proceedings, petitioner
prays for the issuance of a writ of preliminary
injunction enjoining respondents Manila court,
Juan Uriarte Zamacona and Higinio Uriarte

from proceeding with Special Proceeding No.

51396, supra, until further orders of this
Court.
Reasons in support of said petition are stated therein as
follows:
6. Respondent Negros court erred in
dismissing its Special Proceeding No. 6344,
supra, and failing to declare itself 'the court
first taking cognizance of the settlement of
the estate of' the deceased Don Juan Uriarte y
Goite as prescribed in Rule 75 section 1 of the
Rules of Court. Respondent Manila court erred
in failing to dismiss its Special Proceeding No.
51396, supra, notwithstanding proof of prior
filing of Special Proceeding No. 6344, supra, in
the Negros court.
The writ of preliminary injunction prayed for was granted
and issued by this Court on October 24, 1963.
On April 22, 1964 petitioner filed against the same
respondents a pleading entitled SUPPLEMENTAL PETITION
FOR MANDAMUS docketed in this Court as G.R. No. L21939 praying, for the reasons therein stated, that
judgment be rendered annulling the orders issued by the
Negros Court on December 7, 1963 and February 26, 1964,
the first disapproving his record on appeal and the second
denying his motion for reconsideration, and further
commanding said court to approve his record on appeal and
to give due course to his appeal. On July 15, 1964 We issued
a resolution deferring action on this Supplemental Petition
until the original action for certiorari (G.R. L-21938) is taken
up on the merits.

On October 21, 1963 the respondents in G.R. L-21938 filed

their answer traversing petitioner's contention that the
respondent courts had committed grave abuse of discretion
in relation to the matters alleged in the petition forcertiorari.
It appears that on November 6, 1961 petitioner filed with
the Negros Court a petition for the settlement of the estate
of the late Don Juan Uriarte y Goite (Special Proceeding No.
6344) alleging therein, inter alia, that, as a natural son of
the latter, he was his sole heir, and that, during the lifetime
of said decedent, petitioner had instituted Civil Case No.
6142 in the same Court for his compulsory acknowledgment
as such natural son. Upon petitioner's motion the Negros
Court appointed the Philippine National Bank as special
administrator on November 13, 1961 and two days later it
set the date for the hearing of the petition and ordered that
the requisite notices be published in accordance with law.
The record discloses, however, that, for one reason or
another, the Philippine, National Bank never actually
qualified as special administrator.
On December 19, 1961, Higinio Uriarte, one of the two
private respondents herein, filed an opposition to the abovementioned petition alleging that he was a nephew of the
deceased Juan Uriarte y Goite who had "executed a Last Will
and Testament in Spain, a duly authenticated copy whereof
has been requested and which shall be submitted to this
Honorable Court upon receipt thereof," and further
questioning petitioner's capacity and interest to commence
the intestate proceeding.
On August 28, 1962, Juan Uriarte Zamacona, the other
private respondent, commenced Special Proceeding No.
51396 in the Manila Court for the probate of a document
alleged to be the last will of the deceased Juan Uriarte y
Goite, and on the same date he filed in Special Proceeding

No. 6344 of the Negros Court a motion to dismiss the same

on the following grounds: (1) that, as the deceased Juan
Uriarte y Goite had left a last will, there was no legal basis to
proceed with said intestate proceedings, and (2) that
petitioner Vicente Uriarte had no legal personality and
interest to initiate said intestate proceedings, he not being
an acknowledged natural son of the decedent. A copy of the
Petition for Probate and of the alleged Will were attached to
the Motion to Dismiss.
Petitioner opposed the aforesaid motion to dismiss
contending that, as the Negros Court was first to take
cognizance of the settlement of the estate of the deceased
Juan Uriarte y Goite, it had acquired exclusive jurisdiction
over same pursuant to Rule 75, Section 1 of the Rules of
Court.
On April 19, 1963, the Negros Court sustained Juan Uriarte
Zamacona's motion to dismiss and dismissed the Special
Proceeding No. 6344 pending before it. His motion for
reconsideration of said order having been denied on July 27,
1963, petitioner proceeded to file his notice of appeal,
appeal bond and record on appeal for the purpose of
appealing from said orders to this court on questions of law.
The administrator with the will annexed appointed by the
Manila Court in Special Proceeding No. 51396 objected to
the approval of the record on appeal, and under date of
December 7, 1963 the Negros Court issued the following
order:
Oppositor prays that the record on appeal
filed by the petitioner on July 27, 1963, be
dismissed for having been filed out of time
and for being incomplete. In the meantime,
before the said record on appeal was
approved by this Court, the petitioner filed a

petition for certiorari before the Supreme

Court entitled Vicente Uriarte, Petitioner, vs.
Court of First Instance of Negros Occidental,
et al., G.R. No. L-21938, bringing this case
squarely before the Supreme Court on
questions of law which is tantamount to
petitioner's abandoning his appeal from this
Court.
WHEREFORE, in order to give way to the
certiorari, the record on appeal filed by the
petitioner is hereby disapproved.
In view of the above-quoted order, petitioner filed the
supplemental petition for mandamus mentioned heretofore.
On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in
Special Proceeding No. 51396 pending in the Manila Court,
asking for leave to intervene therein; for the dismissal of the
petition and the annulment of the proceedings had in said
special proceeding. This motion was denied by said court in
its order of July 1 of the same year.
It is admitted that, as alleged in the basic petition filed in
Special Proceeding No. 6344 of the Negros Court, Vicente
Uriarte filed in the same court, during the lifetime of Juan
Uriarte y Goite, Civil Case No. 6142 to obtain judgment for
his compulsory acknowledgment as his natural child. Clearly
inferrable from this is that at the time he filed the action, as
well as when he commenced the aforesaid special
proceeding, he had not yet been acknowledged as natural
son of Juan Uriarte y Goite. Up to this time, no final
judgment to that effect appears to have been rendered.
The record further discloses that the special proceeding
before the Negros Court has not gone farther than the

appointment of a special administrator in the person of the

Philippine National Bank who, as stated heretofore, failed to
qualify.
On the other hand, it is not disputed that, after proper
proceedings were had in Special Proceeding No. 51396, the
Manila Court admitted to probate the document submitted
to, it as the last will of Juan Uriarte y Goite, the petition for
probate appearing not to have been contested. It appears
further that, as stated heretofore, the order issued by the
Manila Court on July 1, 1963 denied petitioner. Vicente
Uriarte's Omnibus Motion for Intervention, Dismissal of
Petition and Annulment of said proceedings.
Likewise, it is not denied that to the motion to dismiss the
special proceeding pending before the Negros Court filed by
Higinio Uriarte were attached a copy of the alleged last will
of Juan Uriarte y Goite and of the petition filed with the
Manila Court for its probate. It is clear, therefore, that almost
from the start of Special Proceeding No. 6344, the Negros
Court and petitioner Vicente Uriarte knew of the existence of
the aforesaid last will and of the proceedings for its probate.
The principal legal questions raised in the petition for
certiorari are (a) whether or not the Negros Court erred in
dismissing Special Proceeding No. 6644, on the one hand,
and on the other, (b) whether the Manila Court similarly
erred in not dismissing Special Proceeding No. 51396
notwithstanding proof of the prior filing of Special
Proceeding No. 6344 in the Negros Court.
Under the Judiciary Act of 1948 [Section 44, paragraph (e)],
Courts of First Instance have original exclusive jurisdiction
over "all matters of probate," that is, over special
proceedings for the settlement of the estate of deceased
persons whether they died testate or intestate. While

their jurisdiction over such subject matter is beyond

question, the matter of venue, or the particular Court of First
Instance where the special proceeding should be
commenced, is regulated by former Rule 75, Section 1 of the
Rules of Court, now Section 1, Rule 73 of the Revised Rules
of Court, which provides that the estate of a decedent
inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, shall be in the court of first
instance in the province in which he resided at the time of
his death, and if he is an inhabitant of a foreign country, the
court of first instance of any province in which he had
estate. Accordingly, when the estate to be settled is that of
a non-resident alien like the deceased Juan Uriarte y Goite
the Courts of First Instance in provinces where the
deceased left any property have concurrent jurisdiction to
take cognizance of the proper special proceeding for the
settlement of his estate. In the case before Us, these Courts
of First Instance are the Negros and the Manila Courts
province and city where the deceased Juan Uriarte y Goite
left considerable properties. From this premise petitioner
argues that, as the Negros Court had first taken cognizance
of the special proceeding for the settlement of the estate of
said decedent (Special Proceeding No. 6344), the Manila
Court no longer had jurisdiction to take cognizance of
Special Proceeding No. 51396 intended to settle the estate
of the same decedent in accordance with his alleged will,
and that consequently, the first court erred in dismissing
Special Proceeding No. 6344, while the second court
similarly erred in not dismissing Special Proceeding No.
51396.
It can not be denied that a special proceeding intended to
effect the distribution of the estate of a deceased person,
whether in accordance with the law on intestate succession
or in accordance with his will, is a "probate matter" or a
proceeding for the settlement of his estate. It is equally true,

however, that in accordance with settled jurisprudence in

this jurisdiction, testate proceedings, for the settlement of
the estate of a deceased person take precedence over
intestate proceedings for the same purpose. Thus it has
been held repeatedly that, if in the course of intestate
proceedings pending before a court of first instance it is
found it hat the decedent had left a last will, proceedings for
the probate of the latter should replace the intestate
proceedings even if at that stage an administrator had
already been appointed, the latter being required to render
final account and turn over the estate in his possession to
the executor subsequently appointed. This, however, is
understood to be without prejudice that should the alleged
last will be rejected or is disapproved, the proceeding shall
continue as an intestacy. As already adverted to, this is a
clear indication that proceedings for the probate of a will
enjoy priority over intestate proceedings.

opposition to Vicente Uriarte's petition for the issuance of

letters of administration, he had already informed the
Negros Court that the deceased Juan Uriarte y Goite had left
a will in Spain, of which a copy had been requested for
submission to said court; and when the other respondent,
Juan Uriarte Zamacona, filed his motion to dismiss Special
Proceeding No. 6344, he had submitted to the Negros Court
a copy of the alleged will of the decedent, from which fact it
may be inferred that, like Higinio Uriarte, he knew before
filing the petition for probate with the Manila Court that
there was already a special proceeding pending in the
Negros Court for the settlement of the estate of the same
deceased person. As far as Higinio Uriarte is concerned, it
seems quite clear that in his opposition to petitioner's
petition in Special Proceeding No. 6344, he had expressly
promised to submit said will for probate to the Negros Court.

Upon the facts before Us the question arises as to whether

Juan Uriarte Zamacona should have filed the petition for the
probate of the last will of Juan Uriarte y Goite with the
Negros Court particularly in Special Proceeding No. 6344
or was entitled to commence the corresponding separate
proceedings, as he did, in the Manila Court.

But the fact is that instead of the aforesaid will being

presented for probate to the Negros Court, Juan Uriarte
Zamacona filed the petition for the purpose with the Manila
Court. We can not accept petitioner's contention in this
regard that the latter court had no jurisdiction to consider
said petition, albeit we say that it was not the proper
venuetherefor.

The following considerations and the facts of record would

seem to support the view that he should have submitted
said will for probate to the Negros Court, either in a separate
special proceeding or in an appropriate motion for said
purpose filed in the already pending Special Proceeding No.
6344. In the first place, it is not in accord with public policy
and the orderly and inexpensive administration of justice to
unnecessarily multiply litigation, especially if several courts
would be involved. This, in effect, was the result of the
submission of the will aforesaid to the Manila Court. In the
second place, when respondent Higinio Uriarte filed an

It is well settled in this jurisdiction that wrong venue is

merely a waiveable procedural defect, and, in the light of
the circumstances obtaining in the instant case, we are of
the opinion, and so hold, that petitioner has waived the right
to raise such objection or is precluded from doing so by
laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan
Uriarte y Goite since December 19, 1961 when Higinio
Uriarte filed his opposition to the initial petition filed in
Special Proceeding No. 6344; that petitioner likewise was
served with notice of the existence (presence) of the alleged

last will in the Philippines and of the filing of the petition for
its probate with the Manila Court since August 28, 1962
when Juan Uriarte Zamacona filed a motion for the dismissal
of Special Proceeding No. 6344. All these notwithstanding, it
was only on April 15, 1963 that he filed with the Manila
Court in Special Proceeding No. 51396 an Omnibus motion
asking for leave to intervene and for the dismissal and
annulment of all the proceedings had therein up to that
date; thus enabling the Manila Court not only to appoint an
administrator with the will annexed but also to admit said
will to probate more than five months earlier, or more
specifically, on October 31, 1962. To allow him now to assail
the exercise of jurisdiction over the probate of the will by the
Manila Court and the validity of all the proceedings had in
Special Proceeding No. 51396 would put a premium on his
negligence. Moreover, it must be remembered that this
Court is not inclined to annul proceedings regularly had in a
lower court even if the latter was not the proper
venue therefor, if the net result would be to have the same
proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where the
objection against said proceedings is raised too late.
In his order of April 19, 1963 dismissing Special Proceeding
No. 6344, Judge Fernandez of the Negros Court said that he
was "not inclined to sustain the contention of the petitioner
that inasmuch as the herein petitioner has instituted Civil
Case No. 6142 for compulsory acknowledgment by the
decedent such action justifies the institution by him of this
proceedings. If the petitioner is to be consistent with the
authorities cited by him in support of his contention, the
proper thing for him to do would be to intervene in the
testate estate proceedings entitled Special Proceedings No.
51396 in the Court of First Instance of Manila instead of
maintaining an independent action, for indeed his supposed
interest in the estate of the decedent is of his doubtful

character pending the final decision of the action for

compulsory acknowledgment."
We believe in connection with the above matter that
petitioner is entitled to prosecute Civil Case No. 6142 until it
is finally determined, or intervene in Special Proceeding No.
51396 of the Manila Court, if it is still open, or to ask for its
reopening if it has already been closed, so as to be able to
submit
for
determination
the
question
of
his
acknowledgment as natural child of the deceased testator,
said court having, in its capacity as a probate court,
jurisdiction to declare who are the heirs of the deceased
testator and whether or not a particular party is or should be
declared his acknowledged natural child (II Moran on Rules
of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil. 249;
Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil.
227, and Jimoga-on vs. Belmonte, 47 O. G. 1119).
Coming
now
to
the
supplemental
petition
for mandamus (G.R. No. L-21939), We are of the opinion,
and so hold, that in view of the conclusions heretofore
stated, the same has become moot and academic. If the
said supplemental petition is successful, it will only result in
compelling the Negros Court to give due course to the
appeal that petitioner was taking from the orders of said
court dated December 7, 1963 and February 26, 1964, the
first being the order of said court dismissing Special
Proceeding No. 6344, and the second being an order
denying petitioner's motion for the reconsideration of said
order of dismissal. Said orders being, as a result of what has
been said heretofore beyond petitioner's power to contest,
the conclusion can not be other than that the intended
appeal would serve no useful purpose, or, worse still, would
enable petitioner to circumvent our ruling that he can no
longer question the validity of said orders.

IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is

hereby rendered denying the writs prayed for and, as a
result, the petition for certiorari filed in G.R. No. L-21938, as
well as the supplemental petition formandamus docketed as
G.R. No. L-21939, are hereby dismissed. The writ of
preliminary injunction heretofore issued is set aside. With
costs against petitioner.

15. Del Rosario v Del Rosario

G.R. No. L-45761

April 28, 1939

JULIA DEL ROSARIO, ET AL., plaintiffs-appellants,

vs.
ANTONIO DEL ROSARIO, ET AL., defendants-appellees.
Galo
Al.
Acua
for
M. H. de Joya and Fidel J. Silva for appellees.

appellants.

AVANCEA, C. J.:
The complaint alleges: That Ramon del Rosario and
Florencia Arcega were husband and wife, the former having
died in 1895 and the latter in 1933; that the plaintiffs and
the defendants are the heirs of both; that Ramon del Rosario
died without a will, leaving properties of the conjugal
partnership valued at P19,000; that after the death of
Ramon del Rosario, his widow Florencia Arcega administered
these properties and with the products thereof acquired
others, which are those described in paragraph 9 of the
complaint. It is, moreover, inferred from the complaint that
after the death of Ramon del Rosario, his intestate was not
commenced and the conjugal properties were not liquidated

until Florencia Arcega died, after which the latter's

testamentary proceedings were initiated and are now in
progress.
The plaintiffs bring this action to recover their share not only
in the conjugal properties left by Ramon del Rosario but also
in those acquired by Florencia Arcega with the products of
said properties.
A demurrer was interposed to the complaint on the ground
that there is another action pending between the same
parties and for the same cause of action; that there is a
defect or party plaintiffs and party defendants, and that the
complaint does not allege facts sufficient to constitute a
cause of action.
The court sustained this demurrer and dismissed the case.
From this resolution an appeal was taken.
Both in the Court of First Instance as well as in this court, the
parties discuss whether Act No. 3176, or the former law, is
applicable to the case. Act No. 3176 only amends the former
law in the sense that upon the death of any of the spouses
the community property shall be liquidated in the
testamentary or intestate proceedings of the deceased
spouse. But whatever law might be applicable, and even
assuming that it was that prior to Act No. 3176, the intestate
of Ramon del Rosario not having been commenced upon his
death in 1895 until his widow Florencia Arcega also died in
1933, and the testamentary proceedings of Florencia Arcega
having been subsequently initiated, wherein, among other
things, the liquidation of her conjugal properties with the
deceased Ramon del Rosario should be made, the pendency
of these testamentary proceedings of the deceased wife
excludes any other proceeding aimed at the same purpose
(Zaide vs. Concepcion and Quintana, 32 Phil., 403). At the

rate, the plaintiffs have a right to intervene in these

proceedings as parties interested in the liquidation and
partition of the conjugal properties of the deceased spouses
Ramon del Rosario and Florencia Arcega among their heirs.
The appealed judgment is affirmed, with the costs to the
appellant. So ordered.

16. Dolar v Roman Catholic

[G.R. No. 46521. October 14, 1939.]
In the matter of the will of the deceased Paulino
Diancin. TEOPISTA DOLAR, administratrix-appellant,
OLIMPIA, RITA, JOSEFINA and ROSARIO DIANCIN,
appellants, v. ROMAN CATHOLIC BISHOP OF
JARO, Appellee.
Montinola & Tirol for Appellants.
William E. Greenbaum and Luis Hofilea for Appellee.
SYLLABUS

DESCENT AND DISTRIBUTION, CONJUGAL PROPERTY;

OBLIGATORY LEGITIME; LEGACY; FREE THIRD; USUFRUCT OF
THE WIDOW. Unless the widow T. D., the heirs of the
deceased by his two marriages, the representative of the
legacy for P8,000 and the creditors of the estate, otherwise
come to an agreement, the partition should be made with
the intervention of all the interested parties according to
law. All the debts and administration expenses shall first be
paid (section 753 of the Code of Civil Procedure). The
conjugal properties of the first marriage shall be liquidated
so as to determine those corresponding to the children had
with the deceased M. D., as her heirs, and those
corresponding to the deceased. Likewise, the conjugal
properties of the second marriage shall be liquidated, so as
to determine the half corresponding to the widow T. D. and
the other half corresponding to the deceased (article 1426
of the Civil Code). The properties corresponding to the
deceased, acquired during his first and second marriages,
constitute his estate, which should be partitioned among his
heirs, namely, his children by his two marriages and his
widow T. D. (articles 931 and 834 of the Civil Code). There
being forced heirs, the legacy of P8,000 should be taken
from the free third only, without touching the obligatory
legitime (article 813 of the Civil Code), and for this purpose,
the properties to be partitioned should first be divided into
three equal parts, two of which constitute the obligatory
legitime, and the other the free third, so as to determine the
properties from which the legacy should be taken. On the
other hand, this legacy being by way of usufruct, the heirs
may comply therewith or deliver to the legatee properties
equivalent to the free third (article 820, paragraph 3, of the
Civil Code). The fruits of the properties already received or
to be received shall answer for the legacy with respect to
one-third thereof only, the remaining two-thirds being those
of the heirs (article 813 of the Civil Code). The legal usufruct
of the widow should be taken from the third available for
betterment (article 835 of the Civil Code).

DECISION
AVANCEA , C.J. :
Paulino Diancins first wife was Margarita Doctura and
Teopista
Dolar
his
second.
By his first marriage he had five children, named Lucas,
Guadalupe, Bibiana, Fidel and Tiburcio. Lucas died leaving
three children, named Natividad, Jose and Demetria.
Guadalupe also died leaving three children also, named
Natalia, Jesus and Sulpicio Palma. Bibiana, Fidel and Tiburcio
are
still
living.
By his second marriage, he had four children, named
Olimpia,
Rita,
Josefina
and
Rosario.
He acquired certain properties during his first marriage and
still others during his second. He left as will before he died
wherein he sets out all his properties and distributes them
among his widow Teopista Dolar and his heirs by both
marriages. He also left a legacy of P8,000 to be spent for the
altar of the church under construction in the Municipality of
Damangas, ordering that this be taken from the fruits of all
the properties before they are partitioned among his heirs.
After the commencement of the testamentary proceedings
and the appointment therein of Topista Dolar as judicial
administratrix, the latter first filed a project of partition
which was not approved because of the oppositions of
certain heirs, and thereafter, on November 30, 1936, filed
another project of partition which was not also approved
because of the opposition of the representative of the
Church of Dumangas, the Bishop of Jaro. In disapproving this
last project of partition, the Court ordered the administratrix
to take immediate possession of all the properties of the

estate and pay from the products thereof the legacy of

P8,000 in favor of the Bishop of Jaro, upon payment of this
legacy, to submit another new project of partition for its
arrival. From this resolution the administratrix Teopista Dolar
and the heirs of the deceased by his second marriage,
appealed.
We note, first of all, that the last project of partition
submitted by the administratrix is not concurred in by the
heirs of the deceased by his first marriage to whom have
been allotted their shares of the state corresponding to
them.
In the light of the foregoing facts and the allegations of the
parties in this instance, we hold that, unless the widow
Teopista Dolar, the heirs of the deceased by his two
marriages, the representatives of the legacy for P8,000, and
the creditors of the state, otherwise come to an agreement.
the partition should be made with the intervention of all the
interested parties according to law. All the debts and
administration expenses shall first be paid. (Section 753 of
the Code of Civil Procedure). The conjugal properties of the
first marriage shall be liquidated so as to determine those
corresponding to the children had with the deceased
Margarita Doctura, as her heirs, and those corresponding to
the deceased. Likewise, the conjugal properties of the
second marriage shall be liquidated, so as to determine the
half corresponding to the widow Teopista Dolar and the
other half corresponding to the deceased (article 1426 of
the Civil Code). The properties corresponding to the
decease(i, acquired during his first and second marriages,
constitute his estate, which should be partitioned among his
heirs, namely, his children by his two marriages and his
widow Teopista Dolar (articles 931 and 834 of the Civil
Code). There being forced heirs, the legacy of P8,000 should
be taken from the free third only, without touching the
obligatory legitime (article 813 of the Civil Code), and for

this purpose, the properties to be partitioned should first be

divided into three equal parts, two of which constitute the
obligatory legitime, and the other the free third, so as to
determine the properties from which the legacy should be
taken. On the other hand, this legacy being by way of
usufruct, the heirs may comply therewith or deliver to the
legatee properties equivalent to the free third (article 820,
Paragraph 3, of the Civil Code). The fruits of the properties
already received or to be received shall answer for the
legacy with respect to one-third thereof only, the remaining
two-thirds being those of the heirs (article 813 of the Civil
Code). The legal usufruct of the widow should be taken from
the third available for betterment (article 835 of the Civil
Code).
After the partition is made in accordance with the foregoing,
there should be delivered to the heirs the properties
corresponding to them as legitime. As to the free third, the
testator not having disposed of its ownership, it shall belong
to all the forced heirs, in equal parts, subject to the legacy
as
to
its
fruits.
The appealed resolution is modified in accordance with the
foregoing, without special pronouncement as to the cost. So
ordered.

17. Alfonso v Natividad

[G.R. No. 2518. April 30, 1906. ]
HERMENEGILDO ALFONSO, Plaintiff-Appellant, v.
PEDRO NATIVIDAD, ET AL., Defendants-Appellees.
Leocadio Joaquin, for Appellant.
J. Gerona, for Appellees.
SYLLABUS
1. REALTY; LOAN; SECURITY; MORTGAGE; LIEN. The
delivery of title deeds to real estate as security for a loan of
money does not constitute either a mortgage of the land or
a
lien
thereon.
2. ID.; CONJUGAL PARTNERSHIP. During the marriage, land
was conveyed to the wife. The evidence did not show to
whom the money belong with which the land was brought.
Held, That it became the property of the conjugal
partnership
(Civil
Code,
art
1407)
3 ID.; ID.; ID.; ADMINISTRATION; THIRD. When a conjugal
partnership is dissolved by the death of the husband it must
be liquidated in the proceedings for the settlement of the
estate
of
the
husband.
4. ID.; ID.; ID.; ADMINISTRATORS; THIRD PARTY. The
administrator appointed in such proceedings is charged with
such liquidation under the direction of the court and may
maintain an action against a third person to recover
possession of property belonging to the dissolved conjugal
partnership.
5. ID.; ID.; SALE; "PACTO DE RETRO;" HEIRS. Real estate
belonging to a conjugal partnership was sold by the spouses
during the marriage with pacto de retro. After the death of

the husband the wife with her own money, acting for herself
and not for the dissolved partnership, repurchased the
property. Held, That it became thereby her separate
property and the heirs of the husband no interest therein.

DECISION
WILLARD, J. :
The plaintiff, as the administrator of the estate of Pedro
Angeles, deceased, brought this action against Pedro
Natividad and Silvestre Flores for the recovery of two
separate parcels of land in the Province of La Laguna,
alleging that Silvestre Flores was wrongfully in possession of
the tract of land situated in the barrio of Santisima Cruz, in
the pueblo of Santa Cruz, and that Pedro Natividad was in
the unlawful possession of the other tract of land situated in
the barrio of Bunuhan, in the pueblo of Pila. The controversy
between the plaintiff and Pedro Natividad is entirely distinct
from the controversy between him and Silvestre Flores, and
neither controversy has anything at all to do with the other,
and they are in effect two distinct and separate actions.
(1) The fact in the reference to the parcel of land occupied
by Pedro Natividad are as follows: Pedro Angeles and
Tomasa Mundanao were married prior to the year 1888, and
during their marriage Tomasa acquired the legal title to the
tract of land here in question. On the 14th day of July, 1889,
Pedro Angeles and his wife, Tomasa, executed and delivered
the
following
document:jgc:chanrobles.com.ph
"We, Pedro de los Angeles and Tomasa Mundanao, husband
and wife, natives and residents of the town of Santa Tomasa
Cruz, Province of La Laguna, of age, hereby acknowledge to
have received from Pedro Natividad and his wife, Agapita
Guilatro, the sum of 500 pesos, in silver coin, which we

promise to return subject to no condition whatsoever as

soon
as
we
get
the
money.
"And as security therefor we hereby pledge the title deed to
a piece of land in the barrio of Banuhan of the town of Pila,
the boundaries of which are set forth in the said document.
In witness thereof we affix our signatures hereto.
"Nagcarlang,
(Signed)

July
"PEDRO

14,

1889.
ANGELES.

(Signed) "TOMASA MUNDANAO."cralaw virtua1aw library

The document referred to in this agreement constituted the
title papers to the land in question, and they were then
delivered to Pedro Natividad, and he now has then in his
possession. Pedro Angeles died in the year 1889, after the
execution of this document. Tomasa died in March, 1901.
Pedro Natividad testified at the trial that when Tomasa died
he took possession of the land waiting for some of the heirs
of the said Pedro and Tomasa to appear and pay the debt
due him. He paid the land taxes, but never cultivated the
land and never received anything from it, as the evidence in
the
case
shows.
The theory of the plaintiff is the property belonged to the
conjugal partnership during the life of the spouses; of the
husband, its affairs should by law be liquidated and settled
by the representatives of the husband; that he is such
representative and is entitled to the possession of the
property for the purpose of liquidating the affairs of the
conjugal partnership. The claim of Pedro Natividad is that
the property was not the property of the conjugal
partnership, but was but was the private property of
Tomasa; that it was bought with her money and that the
husband had no interest therein. There is no evidence in the

case to show from what source the money came which was
used to buy the land. Although the legal title was taken in
the name of the wife, yet in all proceedings, including the
proceedings relating to the judicial possession which was
given to the wife, the husband appeared and took part.
Article
1407
of
the
Civil
Code
is
as
follows:jgc:chanrobles.com.ph
"All the property of the marriage shall be considered as
partnership property until it is proven that it belongs
exclusively to the husband or the wife."cralaw virtua1aw
library
The facts of this case bring it within the terms of that article.
In the absence of proof that the money with which the land
was bought belonged to the wife, it must be declared to be
conjugal
property.
The next question to considered is, Who is the person
entitled to liquidate the affairs of the conjugal partnership
when it is dissolved by the death of the husband? The Civil
Code makes no express provisions on this subject. Article
1418 says that when the partnership is dissolved the
inventory shall at once be made, but it does not say by
whom. Article 1428 is as follows:jgc:chanrobles.com.ph
"With regard to making the inventory, rules for the appraisal
and sale of the property belonging to the conjugal
partnership, guaranty and security for the respective
dowries, and all other particulars, not expressly fixed in this
chapter, the prescriptions of section fifth, chapter fifth title
third, book third, and section second and third, chapter third
of this title shall be observed."cralaw virtua1aw library
Among the articles found in section 5, referred to in this
article,
is
article
1014,
which
is
as
follows:jgc:chanrobles.com.ph

"An heir who may have in his possession the property of the
estate or a part thereof, and who may wish to make use of
the benefit of inventory or of the right to deliberate, shall
estate this to the judge of competent jurisdiction in
testamentary or intestate proceedings, within ten days
following that on which he has become aware that he is
such an heir, if he resides in the place where deceased may
had died. If he resides outside of it the period shall be thirty
days.
"In either case the heir must request, at the same time, the
making of the inventory and the citation of the creditors and
legatees in order that they may be present thereat if they
wish
to."cralaw
virtua1aw
library
The only provision of the Code of Civil Procedure which
seems directly applicable is section 685, which is as
follows:jgc:chanrobles.com.ph
"Community property. One-half the community property,
as determined by the law in force in the Philippine Islands
before the 13th day of August, 1889, belonging to a
husband or wife, and shall be deemed to belong to the
deceased husband and wife, and shall be inventoried and
accounted for, and distributed as a part of the estate, in the
same manner as all other property belonging to the
estate."cralaw
virtua1aw
library
This section can not be so construed as to require one-half
of the property of the conjugal partnership to be inventoried
as the exclusive property of the deceased spouse before any
settlement of the affairs of the partnership. Such a
construction would be in direct violation of the law, which
requires that the partnership property be used to pay its
debts, and provides that one-half of the net proceeds only
belong to each spouse. (Art. 1426, Civil Code.) This section

(685) must mean that when the partnership affairs have

been settled, and all its debts and obligations discharged,
then one-half of the net proceeds shall be considered as the
exclusive
property
of
the
deceased
spouse.
By the provisions of the new Code of Civil Procedure in the
settlement of estates of deceased persons it is necessary to
appoint commissioners, before whom the creditors of the
deceased must present their claims within a time fixed by
the court. The husband is the administrator of the conjugal
partnership. (Art. 1412.) His debts contracted during the
marriage are its debts. (Art. 1418.) When a conjugal
partnership is dissolved by the death of the husband it
would be extremely difficult to settle his estate in
accordance with the provisions of the present Code of
Procedure without settling the partnership affairs. It is
difficult to harmonize the new system with the part of the
old which remains, but we conclude that when the
partnership is dissolved by the death of the husband the
inventory which is mentioned in article 1418 should be
made, and the partnership affairs settled in the Court of First
Instance which takes jurisdiction of the settlement of his
estate, and in the same proceeding. This view being
adopted, it follows as a necessary consequence that the
executor or administrator appointed in that proceeding must
be the person who is entitled to the custody of the property
of the conjugal partnership while the settlement is being
made.
This construction of the law does not deprive the wife, the
surviving partner, of all intervention in the settlement of the
affairs of the partnership, for in intestate estates she is
entitled to be appointed administratrix of her husbands
estate, unless some good reason for not appointing her is
shown.
Applying these principles to the present case it appears that

the partnership was dissolved by the death of the husband;

that its affairs should be settled in the proceedings for the
settlement of his estate; that the plaintiff is the
administrator appointed in that proceeding; that the
property in question belonged to the partnership, and that
therefore the plaintiff is entitled to maintain this action. In
the settlement of the affairs of the partnership hereafter,
this, with all other property of the partnership, including the
debt
of
Pedro
Natividad.
The question whether or not this rule for the settlement of
the affairs of the conjugal partnership when it is dissolved
by the death of the husband, is equally applicable when the
partnership is dissolved by the death of the wife, we do not
consider.
The delivery of the title deeds to the property in question to
Pedro Natividad, in connection with what is said in the
document above quoted, did not create any lien in his favor
upon the land in question, nor entitle him to retain it until
his
debt
was
paid.
(2) The facts in reference to the tract of land claimed by
Silvestre Flores are as follows: The land belonged to the
conjugal partnership. Before the death of the husband, the
husband and wife had sold it to Alejandro Teodoro for 300
pesos with the right of repurchase. Pedro Angeles died
without having exercised this right. After his death his
widow, Tomasa, with money of her own interest, and not in
the interest of the dissolved partnership. She afterwards
sold
it
to
Silvestre
Flores,
the
defendant.
This repurchase of the land her after the death of her
husband gave her the sole ownership thereof, and the heirs
of her husband acquired no rights therein by her
repurchase.

The court below entered judgment in favor of both

defendants. The judgment, so far as Silvestre Flores is
concerned, is affirmed, with the costs of this instance
against the Appellant. The judgment directed the payment
of a certain sum by Flores to the administrator. In this
respect we think the court committed an error, but as Flores
did not appeal, that error can not be corrected.
As to Pedro Natividad the judgment is reversed, and the
cause remanded to the court below, with directions to enter
judgment for the plaintiff for the possession of the property
in question as the property of the conjugal partnership of
Pedro Angeles and Tomasa Mundanao. No costs, as respects
Pedro Natividad, will be allowed to the plaintiff in this court.
After the expiration of twenty days let final judgment be
entered in accordance herewith and ten days thereafter let
the case be remanded to the lower court for proper
procedure. So ordered.

18. Cruz v De Jesus

G.R. No. L-30491

March 2, 1929

DONATO CRUZ, ET AL., plaintiffs-appellants,

vs.
TEOFILO DE JESUS, ET AL., defendants-appellees.
VILLA-REAL, J.:

The present appeal is taken by plaintiffs Donato Cruz and

others, from an order of the Court of First Instance of Neuva
Ecija, denying the motion presented by them, praying that
they be permitted to amend their complaint as follows:

In support of their appeal, the appellants assigned the

following alleged errors as committed by the court below in
its judgment, to wit:
The lower court erred:

1. That instead of the title Partition the said

complaint should be entitled Liquidation and
partition, and
2. That the following should be inserted after par. 5
as paragraph 5A:
That Julian Nabong left no debt outstanding at her
death nor any money or crdit payable to the estate
and that lands described from section (a) to section
(m) inclusive of paragraph 4 are free from all liens
and incumbrances since then up to the present time.
The plaintiffs filed said motion in pursuant of the order dated
May 2, 1928, the dispositive part of which is as follows:
By virtue of the considerations, the court hold that
the proper action for the partition of property
belonging to a conjugal partnership dissolved by the
death of one of the spouses, one of the participants
being the surviving spouse, is the estate or the
intestate proceeding for the settlement of the estate
of the deceased spouse, wherein said conjugal
property must first be liquidated before the partition
is made. Five days are hereby given the plaintiff,
from the receipt hereof, to amend the complaint, if it
admit of the same,in order to make it accord with the
theory sustained by the court in this order.

1. In denying the partition of the lands in question

among the parties concerened;
2. In being of opinion that liquidation and
administration are necessary before partition when
there are no debts or credits to be liquidated;
3. In not admitting the amendment to the complaint;
and
4. In refusing to hear the case fully and denying the
motion for new trial.
The only question to determine in the present appeal is
whether or not an action lies for the liquidation and partition
of the property of a conjugal partnership dissolved by the
death of the wife, said property having been in the
possession of the surviving spouse for many years, without
his having made any inventory thereof, nor liquidated and
partitioned it, and it not appearing that there is any debt to
pay.
Section 685 of Act No. 190, as amended by Act No. 3176,
provides as follows:
SEC. 685. When the marriage is dissolved by the
death of the husband or wife, the community
property shall be inventoried, administered, and
liquidated, and the debts thereof shall be paid, in the

testamentary or intestate proceedings of the

deceased spouse, in accordance with the provisions
of this Code relative to the administration and
liquidation of the estates of deceased persons, or in
an ordinary liquidation and partition proceeding,
unless the parties, being all of age and legally
capacitated, avail themselves of the right granted to
them by this Code of proceedings of the extrajudicial
partition and liquidation of said property.
In case it is necessary to sell any portion of said
community property in order to pay the outstanding
debts and obligations of the same, such sale shall be
made in the manner and with the formalities
established by this Code for the sale of the property
of deceased persons. Any sale, transfer, alienation or
disposition of said property effected without said
formalities shall be null and void, except as regards
the portion that belonged to the vendor at the time
the liquidation and partition was made.
It is to be noted that this legal provision establishes two
methods of liquidating the property of a conjugal
partnership, if the marriage is dissolved by the death of one
of the spouses: the first by a testate or intestate proceeding
according to whether the deceased died with or without a
will; and the other by an ordinary proceeding for liquidation
and partition.
According to the legal provision quoted above, when the
marriage is dissolved by the death of the wife, the legal
power of management of the husband ceases, passing to
the administrator appointed by the court in the testate or
intestate proceedings instituted to that end if there be any
debts to be paid, and when there is no debt pending, the

liquidation and partition may be made in an ordinary

proceeding for that purpose.
Since the complaint for partition alleges that there are no
debts to pay, and as it does not appear that there are any,
paid action will lie, for while it is true that it prays for a
liquidation of the property of the conjugal partnership
dissolved by the death of Juliana Nabong, said liquidation is
implied in the action for partition (Remolino and Bautista vs.
Peralta, G. R. No. 10834).1
For the foregoing considerations, we are of the opinion and
hold, that in accordance with section 685 of Act No. 190, as
amended by Act No. 3176, when there are no debts to pay,
the liquidation and partition of the property of the conjugal
partnership, dissolved by the death of one of the spouses,
may be made in an ordinary action instituted for that
purpose.
By virtue whereof, the order appealed from is revoked, and
it is ordered that the case be remanded to the court of origin
for further proceedings, without prejudice to the right of any
creditor of the dissolved conjugal partnership, and without
special pronouncement as to costs.

Court of the United States, which on April 2, 1906, reversed

the judgment of this Court. (De la Rama, vs. De la Rama,
201, U. S., 303.) The opinion of the supreme court of the
United States concludes as follows:

19. De la Rama v De la Rama

G.R. No. 1056

March 13, 1907

AGUEDA BENEDICTO DE LA RAMA, appellee,

vs.
ESTEBAN DE LA RAMA, appellant.
Ledesma, Sumulong & Quintos for appellant.
Coudert Brothers, Aylett R. Cotton & Lionel D. Hargis for
appellee.
WILLARD, J.:
On July 5, 1902, the Court of First Instance of the Province of
Iloilo entered a final judgment in this case, decreeing a
divorce to the plaintiff on the ground of the husband's
adultery, as well as the payment of 81,042.76 pesos due her
as her unpaid share of the property belonging to the
conjugal partnership, as well as the sum of 3,200 pesos as
an allowance for their support since the date on which the
action was instituted.
From the judgment the defendant appealed to this court,
which, on December 8, 1903, reversed the decree of the
Court of First Instance, incorporated in its opinion certain
findings of fact, and ordered judgment absolute that the
complaint be dismissed. (Benedicto vs. De la Rama, 3 Phil.
Rep., 34.) Thereafter the plaintiff appealed to the Supreme

We have reached the conclusion that there is no such

preponderance of evidence in favor of the theory of
plaintiffs guilt as authorized the Supreme Court to set
aside the conclusions of the court below upon the
ground that these findings were plainly and
manifestly against the weight of the evidence. In this
connection it is proper to bear in mind that the trial
judge had all these witnesses before him and
doubtless formed his conclusions largely from their
appearance on the stand, their manner of giving
testimony, and their apparent credibility. Under the
circumstances we think the Supreme Court should
have affirmed rather than reversed the action of the
lower court.
While the right of the plaintiff to her proportion of the
original property, to alimony pending suit, and to
other allowances claimed is the basis of our
jurisdiction, the decree of the Supreme Court in
dismissing plaintiff's petition renders it unnecessary
to review the action of the Court of First Instance in
fixing the amount that it held plaintiff was entitled to
recover. We are, therefore, of the opinion that the
decree of the Supreme Court dismissing the action
must be reversed and the cause remanded to that
court for further proceedings not inconsistent with
this opinion.
After the case had been remanded to this court, and on the
2d of November, 1906, the plaintiff made a motion that the
judgment of the Court of First Instance be affirmed an order

was made for the submission of printed briefs upon certain

questions of adultery. This court sustained those
assignments and said:
Our conclusion is that neither one of the parties is
entitled to a divorce. The result makes in
unnecessary to consider that part of the judgment
which relates to the settlement of the conjugal
partnership.
The action of this court upon those four assignment of error
relating to adultery was reversed by the Supreme Court of
the United States, and by the decision of that court there
were definitely disposed of. The other assignment of error
relate to that part of the decision of the Court of First
Instance with treats of the division of the conjugal property,
the allowance of alimony, and the order of the court below
that the case be referred to the fiscal for criminal
proceedings against the defendant. As has been said, these
assignments of error were not considered by this court in
view of the result which it reached upon the other
assignments. Nor were they discussed by the Supreme
Court of the United States.
The claim of the appellant now is, however, that the whole
case was finally disposed of by the decision of the latter
court, and that the only thing remaining for this court as to
do is to affirm the judgment of the Court of First Instance in
its entirely.
With this view we can not agree. The only thing considered
by the Supreme Court of the United States was that part of
the decision of the Court of First Instance which related to
the right of the plaintiff to a divorce. It did not pass upon the
division of the conjugal property. Its order was that the case
be remanded to this court for further proceedings not

inconsistent with its opinion. If the contention of the plaintiff

is true, it seems that the order of that court and affirming
that of the Court of First Instance. By remanding the case to
this court for further proceedings not inconsistent with the
opinion of the Supreme Court, it seems to have been the
intention of that court that this court should dispose of the
assignments of error not already of.
The fifth assignment of error is as follows:
Se ha infringido el articulo 1418 y otros del Codigo
Civil al admitir el Juzgado, dentro del presente juicio,
el avaluo y division efectiva de los supuestos bienes
gananciales.
It was claimed by this defendant, in his brief in his original
appeal to this court in support of this assignment of error,
that it was not proper to settle the affairs of the conjugal
partnership in divorce proceedings, and that no such
settlement of a conjugal partnership could ever be made
until there had been a final judgment ordering the divorce,
from which no appeal had been taken, or as to which the
time to appeal had expired, and in his argument in this court
in the motion presented on the 2ds of November, 1906, the
repeats the same claim.
In our opinion, however, this assignment of error was
disposed of by the decision of the Supreme Court of the
United States. As was said in that decision , the jurisdiction
of that court depended entirely upon that part of the
judgment of the Court of First Instance which directed the
payment of 81,000 pesos. If the Court of First Instance had
no jurisdiction to make any order for the payment of money
in a divorce proceeding, that part of the judgment would
have to be eliminated. In taking jurisdiction of the case the
Supreme Court of the United States necessarily held that a

liquidation of the affairs of the conjugal partnership could be

had in a divorce proceeding. The fifth assignment of error,
therefore, can not be urged by the defendant.
The sixth assignment of error was as follows:
Ha incurrido en error en cuanto fija la cuantia de la
mitad de dichos supuestos bienes gananciales en
81,042 pesos y 75 centimos, sin haber tenido a la
vista los antecedentes y datos necesarios y sin haber
tenido en cuenta ademas las perdidas sufridas y las
deudas contraidas por la razon social Hijos de I. de la
Rama.
This assignment of error not having been considered either
by the Supreme Court of the United States or by his court,
be sustained. The Civil Code states in detail the manner in
which the affairs of a conjugal partnership shall be settled
after the same has been dissolved. Article 1418 provides,
except in certain cases not here important, that an inventory
shall at once be made. We have held in the case of Alfonso
vs. Natividad 1 (4 Off. Gaz., 461), that when the partnership
is dissolved by the death of the husband this inventory be
made in the proceedings for the settlement of his estate.
And in the case of Prado vs. Lagera 2 (5 Off. Gaz., 146), that
the inventory thus formed must include the bienes
parafernales of the wife. It is very evident from the
provisions of the Civil Code that the inventory includes the
capital of the husband, the dowry of the wife, in the second
place the bienes parafernales of the wife, in the third place
the debts and obligations of the conjugal partnership, and in
the fourth place the capital of the husband. Articles 1424
and 1426 then provide as follows:
ART. 1424. After the deductions from the inventoried
estate specified in the three preceding articles have

been made, the remainder of the same estate shall

constitute the assets of the conjugal partnership.
ART. 1426. The net remainder of the partnership
property shall be divided, share and share alike,
between the husband and wife, or their respective
heirs.
It is thus seen that the conjugal property which is to be
divided when the partnership is dissolved, is determined not
with reference to the income or profits, which may have
been received during the partnership by the spouses but
rather by the amount of the actual property possessed by
them at such dissolution after making the deductions and
payments aforesaid. This is positively provided by article
1424.
An examination of the decision of the Court of First Instance
shows that no attempt was made to comply with any of
these statutory provisions. No inventory of the partnership
property existing at the time of the trial, at which the
liquidation was made, was ever formed. No provision was
made for paying to the wife the sum of 2,000 pesos, which
was either the dowry or bienes parafernales of the wife. No
provision was made for returning to the husband his capital
in the partnership, which amounted to at least one third of
the assets of the firm of hijos de I. de la Rama, which assets,
according to the inventory made January 30, 1901,
amounted to 1,130,568 pesos. The court below rejected
entirely the method prescribed and in fact liquidated it, as
appears from the decision, upon an entirely different basis.
He determined in the first place the income which each
person had received from his or her property, during the
partnership, finding that the wife during that time had
received from her property 345 pesos as income and that
the husband had received 162,430.53 pesos. He then says:

The total value therefore of the conjugal partnership

existing between the plaintiff and the defendant in
the present case amounts to 162,775,53 pesos. The
words of the statute say that the same must be
divided share and share alike. The means that each
should have 81,387.76 pesos. The wife already
having in her possession 345 pesos of this sum, she
is entitled to receive from the husband 81,042.76
pesos as being the sum necessary to equalize the
holdings of the property which, according to the
statute, must be regarded as belonging to the
conjugal partnership.
It needs no argument to show that this manner of liquidating
the affairs of the conjugal partnership is entirely
unwarranted by the law. The Theory of the Civil Code is that
the conjugal property is the actual property which is left at
the dissolution of the partnership. It, can therefore, never be
determined by adding up the profits, which had been made
each year during its existence, and then saying that the
result is the conjugal property. The difference between the
two systems of liquidation is well illustrated in this case.,
The court below found that the profits of the partnership of
Hijos de I. de la Rama from the time of its organization up to
June 30, 1901, amounted to 290,101,31 pesos. The evidence
in this case shows, however, that the capital with which the
firm started was 1,058.192 pesos, and that on June 30,
1901, the value of its entire property was 1,130,568 pesos,
an increase of only 72,376 pesos. Taking the method
adopted by the court below, if the conjugal partnership had
been dissolved on June 30, 1901, it would have had as an
asset one fourth of this sum of 290,101.31 pesos, but
following the rule laid by the Civil Code it would have only
had one fourth of 72,376 pesos, the difference between the
value of the property of said firm when it was organized and
its value of the 39th of June, 1901.

The other assignments of error were not urged in the last

brief presented by the appellant and in any event we do not
think they can be sustained.
The result is that part of the judgment of the Court of First
Instance ordering the divorce, ordering the payment of
3,200 pesos, Mexican currency, by the defendant to the
plaintiff, and the costs of the action, is affirmed. That part of
it ordering the payment by the defendant to the plaintiff of
81,042.76 pesos, Mexican currency, is set aside, and the
case is remanded to the court below for the purpose of
liquidating in this action the affairs of the conjugal
partnership (considering the same to have been dissolved
on the 5th of July, 1902) in accordance with the rules laid
down in the Civil Code, and a judgment will be entered in
that court for the amount which appears from such
liquidation to be due from the defendant to the plaintiff. No
costs will be allowed to either party in this court.
After the expiration of twenty days let judgment be entered
in accordance herewith, and ten days thereafter the record
be remanded to the court from whence it came for
execution. So ordered.
Arellano, C.J., Torres, Mapa and Tracey, JJ., concur.
Separate Opinions
JOHNSON, J., dissenting:
This cause was originally tried in the Court of First Instance
of the Province of Iloilo. A judgment was there rendered in
favor of the plaintiff and against the defendant. The
defendant appealed to this court and the judgment was
reversed. The plaintiff appealed to the Supreme Court of the

United States, were the judgment of this court was reversed,

and the cause was remanded for further proceedings not
inconsistent with the opinion of the Supreme Court of the
United States.

overruling of the same does not constitute a ground of

exception upon which an appeal can be based for the
purpose of securing a reexamination of the evidence in this
court.

On the 9th day of November, 1906, the plaintiff presented a

motion in this court asking that the original judgment of the
Court of First Instance be affirmed. The attorney for the
defendant opposed this motion, and this court ordered that
the respective parties submit briefs. These briefs were duly
submitted and on the 23d day of January 1907, a majority of
this court, after an examination of the evidence adduced
during the trial of said cause in the Court of First Instance of
the Province of Iloilo, decided that the inventory, made by
the Court of First Instance, had not been made in
accordance with the provisions of the Civil Code. We are of
the opinion that this court has no right or authority to
examine the evidence adduced during the trial of said cause
in the court below for the reason that the defendant and
appellant did not there make a property motion for a new
trial, justifying this court in examining the evidence. We are
of the opinion that this court have no authority to examine
the evidence adduced during the trial in the Court of First
Instance unless the appellant has made a motion for a new
trial in that court "upon the ground that the findings of fact
are plainly and manifestly against the weight of the
evidence" (paragraph 3, section 497 of the Coddfe of
Procedure in Civil Actions), and the judge of the said lower
court has overruled said motion, and the defendant has duly
excepted to such ruling.

Admitting, however, that said motion was sufficient to justify

this court in examining the evidence, we are of the opinion
that even then the evidence adduced during the trial upon
the question of the conjugal property is sufficient to justify
the conclusions of the said Court of First Instance and that
the judgment of the lower court should be affirmed in this
particular. And, moreover, in view of the fact that the
defendant made no appearance in the Supreme Court of the
United States when the case was pending there, and made
no defense when the very question was being considered by
that court which is presented to this court now, we are of
the opinion that a new trial should not be granted, and that
the plaintiff, who is clearly entitled to the relief granted by
the lower court, at the close of the trial should not be further
annoyed or kept out of that portion of the conjugal property
to which she is clearly entitled.

By reference to the motion for a new trial presented in this

cause in the court below, it will be seen that the same was
not based upon these grounds. We are of the opinion that
the motion presented for a new trial comes under the
provisions of sections 145 and 146 of said code, and the

20. Villacorte v Mariano

G.R. No. L-2504

June 29, 1951

CONCEPCION VDA. DE VILLACORTE, ET AL., plaintiffs,

vs.
MACARIA E. MARIANO, cross-plaintiff-appellant,
ENRIQUETA CALIMON, ET AL., cross-defendantsappellees.
Rosendo J. Tansinsin for appellant.
Delgado and Flores for appellees.
BENGZON, J.:
During his lifetime Leon Calimon married thrice. His first
marriage with Adriana Carpio in 1875 gave him four
daughters named Canuta, Tranquilina, Maria and Enriqueta.
A widower in 1898, the next year he married Venancia
Inducil, who lived only ten months thereafter, leaving him no
child. She had, however, a son by previous marriage:
Tiburcio Villacorte. In July 1902 Leon Calimon took a third
wife, Macaria E. Mariano. She bore him no offspring; but
survived him when he passed away in February 1941.
The complaint in this case, filed in September 1941, by the
widow and daughter of Tiburcio Villacorte sought to recover
thirty eight parcels of land allegedly in the possession of
Canuta Calimon and her three sisters and of Macaria E.

Mariano. Plaintiffs averred that the properties belonged to

their predecessor in interest, Venancia Inducil, the
defendants, in two separate answers, claimed that the lots
were owned exclusively by Leon Calimon. Ten months
afterwards Macaria E. Mariano amended her answer to
assert that all the realties had been acquired during her
coverture with Leon Calimon, and also to interpose a
crossclaim against her co-defendants, the heirs of Leon
Calimon by the first marriage, demanding the recognition of
her rights as surviving spouse, to such conjugal partnership
property. In this connection she affirmed that thru deceit and
intimidation she had signed three documents known as
Exhibit 1-Mariano, Exhibit 2-Mariano and Exhibit 3-Mariano
assigning to her co-defendants (cross-defendants) her lawful
participation in the conjugal assets in exchange for certain
properties alloted to her. The cross-defendants countered
with the assertion that some of the properties belonged to
them, and all the rest to their father Leon Calimon, and that
Macaria E. Mariano had voluntarily and validly signed the
documents mentioned in her cross-claim.
The three-cornered fight was heard, in the court of first
instance of Bulacan, partly on stipulation of facts, but mostly
on documentary and testimonial evidence. However, before
it was submitted for decision, the plaintiffs asked for the
dismissal which was granted of their complaint, due to
their inability to prove certain material allegations.
Remaining disputants were, consequently, the heirs of Leon
Calimon by his first marriage on one side, and on the other
his widow Macaria E. Mariano. (By the way, she expired in
1949, during the pendency of this appeal; but she is now
substituted by her two nephews Paulino Mariano and
Trinidad Mariano.)
Deciding the controversy, the Hon. Bonifacio Ysip, Judge,
absolved the cross defendant and upheld the validity of the

three documents, particularly

attempted to cancel and avoid.

Exhibit

Mariano

had

Exhibit 1, written in the Tagalog dialect, signed and thumb

marked by herein litigants in the presence of two witnesses,
was rectified by them before the Clerk of Court of Bulacan
on March 12, 1941 i.e., about a month after a death of Leon
Calimon. It is an agreement, kasunduan" whereby for and in
consideration of riceland, a fishpond and cash from the
mass of property possessed by Leon Calimon in his lifetime,
Macaria E. Mariano renounced in favor of the crossdefendants heirs of Calimon by the first marriage, (the
Calimon sisters), all her interest and rights in the estate of
the deceased Leon Calimon as well as her participation in
the conjugal partnership with him.
On the same day and before the same official, Macaria E.
Mariano thumb-printed Exhibit 2-Mariano whereby she
promised to give the Calimon sisters a first option if she
should later resolve to alienate the realty she had obtained
by virtue of the first "kasunduan", Exhibit 1-Mariano.
About ten days afterwards, on March 21, 1941, the Calimon
sisters executed among themselves a partition of the
properties assigned to them (Exhibit 3) partition which their
stepmother Macaria E. Mariano thumb marked, either to
manifest her conformity and ratify her provision cession or
renunciation, or to act as witness lending her influence to
the solemnity of the agreement. There is evidence that she
even intervene either to advise some of the parties to give
their consent, or to soothe the feelings of those who thought
they were not awarded a fair participation.
Describing the circumstances under which the documents
Exhibit 1-Mariano and Exhibit 2-Mariano had been prepared
and executed, the trial judge wrote:

La contradamandante Macaria E. Mariano presento e

apoyo de su contencion al abogado Mariano Bustos,
que fue el Notario Publico que preparo el documento
Exhibit 1-Mariano, tambien presento como su testigo
a las contrademandadas Tranquilina, Canuta
apellidadas Calimon, y la propia contrademandante.
El abogado Mariano Bustos, declarando como testigo
de la contra-demandante, dijo que antes de la
preparacion del Exhibit 1-Mariano se le hizo un
aconsulta sobre los derechos que pudiera tener
Macaria E. Mariano en los bienes del difunto Leon
Calimon, y esta consulta lo hizo Manuel Asuncion en
nombre y representacion de su abuela Macaria E.
Mariano; el abogado Bustos le dijo que la viuda
Macaria E. Mariano tenia derecho a la mitad de los
bienes gananciales, ademas de su derecho de
usufructo. Unos cuantos dias despues, la misma
contrademandante en compaia de su nieto Manuel
Asuncion, se apersono al abogado Bustos para pedir
la confirmacion de la opinion dada por dicho abogado
al referido Manuel Asuncion, y se lo repitio a la
contrademandante (Pags. 153-55, n.t., Vol. 4).
Transcurridos algunos dias despues de la ultima visita
de Macaria E. Mariano llegaron a su oficina en el
edificio municipal del municipio de Bulacan, Bulacan,
la contrademandante y las contrademandadas, y
despues de la conversacio habida entre ellas se
preparo el Exhibit 1-Mariano y 2-Mariano que fue
leido despues de puesto en limpio, por el abogado
Bustos a las hermanas Calimon y Macaria E. Mariano
(par. 167, n.t., Vo. 4). Una vez enterados de su
contenido que expresaba el convenio habido entre
las partes interesadas, fueron a la oficina de le
Escribania de este Juzgado, acompaadas por dicho
abogado Bustos, para ser ratificado dicho documento

ante el Escribano de este Juzgado Sr. Marciano de los

Santos (pags. 168-169, n.t., Vol. 4). Estando en la
oficina del Escribano, se ratifico el documento Exhibit
1-Mariano y 2-Mariano, y en la misma oficina y ante
el mismo Escribano se firmo por las partes dicho
documento Exhibit 1-Mariano, asi como Macaria E.
Mariano estampo su marca digital en el mismo. El
abogado Bustos declaro, ademas, que el Escribano
antes de hacer el referido documento lo leyo a todas
las partes interesadas y se los pregunto si habian
entendido el contenido del mismo todas ellas, la
misma Macaria E. Mariano contestaron que estaban
conformes (Pags. 169-170, n.t. Vol. 4).
Alipio Culala, un empleado de la oficina de la
Escribania de este Juzgado y uno de los testigos
presenciales del docuemnto Exhibit 1-Mariano y 2Mariano, testificando, declaro que estaba presente
cuando se ratifico dicho documento ante el Escribano
de este Juzgado, Sr. Marciano de los Santos, que la
marca digital que aparece estampada en dichos
documentos Exhibits 1-Mariano, y 2-Mariano era de
ella, estampada por ella, despues que el Escribano
haya leido el contenido de dichos documentos a
todas las partes otorgantes y despues de habe dado
por estas su conformidad.
El otro testigo Marciano de los Santos, Escribano
entonces de este Juzgado y ante quien se ratifico el
documento Exhibit 1-Mariano y se juro Exhibit 2Mariano, corrobora todo lo declarado por el abogado
Bustos y el testigo presencial Alipio Culala en
relacion a la ratificacion y el debido otorgamiento del
Exhibit 1-Mariano y al juramento del Exhibit 2Mariano. Este testigo declaro, ademas, que antes de
que las partes otorgantes estamparan sus firmas en

dichos documentos, se las leyo el contenido de los

mismos en el mismo dialtecto en que estaban
escritos y todas ellas manifestaron que estaban
enteradas de su contenido.
The court reached the conclusion that the three documents
were valid and binding, and that as a consequence the
Calimon sisters were entitled to continue possessing the
lands and properties assigned to them by virtue of said
Exhibit. The cross-defendants were absolved from the crosscomplaint.
It is argued that it was error for the lower court to adjudge
the controversy upon the strength of the above mentioned
exhibits, without previously requiring an inventory and
liquidation of the conjugal properties of the deceased Leon
Calimon and the cross-plaintiff. It is also argued the trial
court erred in not holding that all the lots, except four, were
ganancial assets of said spouses.
In our opinion there was no mistakes. It was unnecessary to
prepare the inventory and make the liquidation because the
parties interested, i.e., the heirs of Leon Calimon and his
widow had already reached a compromise by means of
Exhibit 1-Mariano. And supposing that all those lots were
community property, still the said exhibit governs the rights
of the parties. A similar documents of renunciation was held
valid and binding in Antonio vs. Aloc, 25 Phil. 147. And under
the provision of article 1418 of the Civil Code, inventory
shall not be required if, after the partnership has been
dissolved, one of the spouses of his or her successors shall
have renounced its effects.
But the herein cross-plaintiff wishes to withdraw from her
commitments, pretending that she had signed the
documents because she had been induced to believe she

had no rights whatsoever inasmuch as she had borne no

child of Leon Calimon. That claim was discredited by His
Honor, correctly, we believe, because the documents Exhibit
1-Mariano which was explained to her says: "(b) Nalalaman
ko ang aking karapatan alinsunod sa batas sapagkat dito'y
maraming tao ang nagpaliwanag sa akin at sinasabi nilang
ako'y maaring maghabol sa kalahati (1/2) ang lahat ng mga
pagaaring nabili at naiipon ng aking asawa noong siya'y
nabubuhay pagkatapos na kami ay makasal; sa may
kapangyarihan upang habulin itong aking karapatan . . ..
At any rate her error, if any, was an error of law which
ordinarily does not vitiate contractual consent.
La claficasion del error y su distinta influencia,
dependen de la materiaen que recaiga, como ya lo
indica este articulo, y siguendo los preceptosde este,
completandolos
con
algunas
distinciones,
podemenos enumerar: elerror sobre la sustancia y
sobre las condiciones, refiriendose a las cosasel error
sobre las persona, sobre las cualidades o sobre el
nombre de estastrantadose de las mismas: el error
sobre la cantidad o sobre la cuentarespecto de
precios y sumas; el error de hecho y el de derecho en
general.
Respecto de esta ultima dictincion, la mas
fundamenta, diremos antes de pasarmas adelante,
que por lo general, el error a que este articulo se
refiere, el que constituye vicio del consentiemento,
es el de hecho, no es el de derecho, ni siquiera
cuando precisamente versa el contrato (la
transacion)sobre aquellos de que se crean asistidas
las partes. En este sentido, la jurisprudencia declara,
en sentencia de 12 de Febrero de 1898, que "el error
que vicia los contratos y las transacciones en su

caso, por falta de consentiemento, con areglo a los

articulos 1.261, 1.265, 1.266 y 1.817 he de recaer
sobre la sustancia de la cosa objecto del contrato, y
no sobre el derecho que asista a las partes,
principalmente cuando la differencia deapreciacion
sobre este derecho es lo que da lugar al contrato.
(Manresa, Vol. 8, pag. 590-591.)
Still less meritorious is appellant's protestation that she
didn't know the contents of the document, and was too
feeble-minded to perceive the consequences thereof. The
attorney-at law who prepared Exhibit 1-Mariano, and the
clerk of court of Bulacan, swore that they explained that
document to her. The trial court found she was informed of
the contests thereof. And reading of her testimony, far from
disclosing and ignorant woman whose utter gullibility
requires judicial relief, shows an aged individual, unlettered
but normal in all respects.
The trail court regarded the documents partly as donations
of Macaria Mariano's moity in the partnership assets, and
partly as renunciation of her usufructory rights over the
portion corresponding to Leon Calimon.
If it is donation the appellant insists it is void because,
contrary to the provision of the articles 633 of the Civil
Code, the instrument does not especially describe properties
donated; and according to formalities prescribed by the
Code is essential to the validity of a gift of real estate.
Indeed, Exhibit 1-Mariano does not particularized the parcels
assigned to the Calimon sisters. But the appellees submit
the theory that it is a document of renunciation of her rights
if any, to the conjugal partnership assets, and as such
renunciation it required no donation formalities. Evidently
the Calimon sisters were unwilling to concede that all lots
belonged to the conjugal partnership, saying they belonged

exclusively to them and to their father. But to avoid a

litigation they offered to give Macaria E. Mariano two lots
plus cash, if she will renounce to all the rest. Macaria
agreed, and Exhibit 1-Mariano was executed. There could be
no donation of specific realty, because the Calimon sisters
never admitted that Macaria E. Mariano was the owner
thereof. Exhibit 1 was the result of settlement or
compromised. It is valid contract, to which the form
prescribed for donations is not pertinent. Granted she
miscalculated, yet a compromise entered into a carried out
in good faith will not be discarded even if there was a
mistakes of law or fact (McCarthy vs. Barber Steamship
Lines, 45 Phil., 488) because courts have no power to relieve
parties from obligations voluntarily assumed, simply
because their contracts turned out to be disastrous deals or
unwise investments.
"Men may do foolish things, make ridiculous contracts, use
miserable judgment and lose money by them indeed, all
they have in the world; but not for that alone can the law
intervene and restore. There must be, in addition, a violation
of law, the commission of what the law knows as an
actionable wrong, before the courts are authorized to lay
hold of the situation and remedy it." (Vales vs. Villa, 35 Phil.,
788).
And yet, for all the appellants claims hers was not a very
hard bargain. The cash and the property ceded to her
amounted to P14,000. The assessed value of the lots in
Exhibit A (excluding those admittedly acquired before her
marriage and those in the name of the Calimon sisters )
totals around P32,785. It is questioned that the income from
her share was sufficient for her maintenance during the rest
of her natural life. And it is asserted that the only reasons
she complained of the Calimon sisters was the supposed
delay in the delivery of the fishpond promised to her.

In this connection, and replying to the appellees contention

that some of the properties belonged exclusively to them,
the appellant invites attention to appellees answer wherein
they reported that the lots had been acquired by Leon
Calimon with money belonging to him exclusively. Appellant
avers that their contentions is at war with their above
allegation.
Appellees position is that their pleading constituted no
estoppel. Anyway, being the only descendants of Leon
Calimon they would equally be entitled to such properties,
even if it were true, as recited in their answer, that the
properties were owned by Leon Calimon. Furthermore if the
rule of estoppel is applied, appellant, who adopted the
answer of appellees, would likewise be estopped to deny the
proprietorship of Leon Calimon.
Invoking article 1074 of the Civil Code providing that
partitions may be rescinded on account of lesion exceeding
the fourth part, the appellant pleads that Exhibit 3-Mariano
should be rescinded "for whether we take it from the
assessed value, the market value or the total area of the
properties in litigation, a lesion is suffered by cross-plaintiff
by much more than 1/4 . . . (p. 96, brief). The obvious
answer to this is what appellees suggest: The crossplaintiffwas no party to that partition, therefore she has no
enforceable rights in connection therewith.
The last assignment of error relates to the failure of the trial
Judge to declare that when Leon Calimon died he had
around P60,000 in cash, for which Enriqueta Calimon should
account, she being the person who had access to the safe.
In addition to the fact that the evidence on the point is
sufficient, His Honor evidently deemed it unnecessary to go
into the matter, in view of his opinion on the validity and
binding effect of the three exhibits the cross-plaintiff had

knowingly executed. And we cannot say he erred on the

subject.
Wherefore, finding no reversible mistake in the judgment
under review, we hereby affirm it, with costs against
appellant i.e., her substitutes.

the said daughter, Maria Calma, was appointed judicial

administratrix of the properties of the deceased.
While these probate proceedings of the deceased Fausta
Macasaquit were pending, Esperanza Tanedo, on January 27,
1934, filed a complaint against Eulalio Calma for the
recovery of the sums of P948.34 and P247. The Court of First
Instance of Tarlac rendered judgment for the payment of this
sum. In the execution of this judgment, despite the third
party claim filed by Fausta Macasaquit, the property
described in the complaint was sold by the sheriff.
21. Calma v. Taedo
G.R. No. L-44602

November 28, 1938

MARIA CALMA, as administratrix of the testamentary

proceedings of Fausta Macasaquit, plaintiff-appellant,
vs.
ESPERANZA TAEDO, assisted by her husband Felipe
Mamaual, and BARTOLOME QUIZON, Deputy Sheriff of
Tarlac, defendants-appellees.
AVANCENA, C.J.:
The spouses Eulalio Calma and Fausta Macasaquit were the
owners of the property described in the complaint, being
their conjugal property. They were also indebted to
Esperanza Taedo, chargeable against the conjugal
property, in the sums of P948.34 and P247, with interest
thereon at 10 per cent per annum. On October 10, 1933,
Fausta Macasaquit died leaving a will wherein she appointed
her daughter, Maria Calma, as administratrix of her
properties. Upon the commencement of the corresponding
probate proceedings in the Court of First Instance of Tarlac,

Maria Calma, as administratrix of the estate of Fausta

Macasaquit, now brings this action and asks that the sale
made by the sheriff of the property described in the
complaint be annulled and that the estate of Fausta
Macasaquit be declared the sole and absolute owner
thereof. lawphi1.net
The court absolved the defendants from this complaint.
The probate proceedings of the deceased Fausta Macasaquit
were instituted in accordance with Act No. 3176 reading:
SEC. 685. When the marriage is dissolved by the
death of the husband or wife, the community
property shall be inventoried, administered, and
liquidated, and the debts thereof shall be paid, in the
testamentary or intestate proceedings of the
deceased spouse, in accordance with the provisions
of this Code relative to the administration and
liquidation and partition proceeding, unless the
parties, being all of age and legally capacitated, avail
themselves of the right granted to them by this Code
of proceeding to an extrajudicial partition and
liquidation of said property.

In case it is necessary to sell any portion of said

community property in order to pay the outstanding
debts and obligations of the same, such sale shall be
made in the manner and with the formalities
established by this Code for the sale of the property
of deceased persons. Any sale, transfer, alienation or
disposition of said property effected without said
formalities shall be null and void, except as regards
the portion that belonged to the vendor at the time
the liquidation and partition was made.
Prior to this Act, the liquidation of conjugal property was
made under section 685 of the Code of Civil Procedure.
Interpreting the scope of Act No. 3176, this court, in the
case of Caragay vs. Urquiza (53 Phil., 72), said that the
amendment introduced by this Act consists in authorizing
the institution of testate or intestate proceedings for the
settlement of the estate of a deceased spouse or of an
ordinary action for the liquidation and partition of the
property of a conjugal partnership. It should be understood
that these remedies are alternative, and not cumulative, in
he sense that they cannot be availed of at he same time,
inasmuch as an anomalous and chaotic situation would
result if conjugal property were administered, liquidated and
distributed at the same time in a testamentary proceeding
and in an ordinary action for liquidation and partition of
property. Consequently, the testamentary proceedings of
Fausta Macasaquit having been instituted, the liquidation
and partition of the conjugal property by reason of her
marriage to Eulalio Calma should be made in these
proceedings, to the exclusion of any other proceeding for
the same purpose.
Interpreting this same Act No. 3176 in another decision, this
court, in the case of Cruz vs. De Jesus (52 Phil., 870) said
that when the marriage is dissolved by the death of the wife,

the legal power of management of the husband ceases,

passing to the administrator appointed by the court in the
testate or intestate proceedings instituted to that end if
there be any debts to be paid. This doctrine has been
confirmed in the other case of Ona vs. De Gala (58 Phil.,
881).
From the foregoing it follows that when Esperanza Tanedo
brought suit against Eulalio Calma for the payment of the
sums of P948.34 and P247, which wee debts chargeable
against the conjugal property, the power of Eulalio Calma.
legal administrator of the conjugal property while Fausta
Macasaquit was living, had ceased and passed to the
administratrix Maria Calma appointed in the testamentary
proceedings of Fausta Macasaquit. Hence, this being an
indebtedness chargeable against conjugal property, no
complaint for its payment can be brought against Eulalio
Calma, who had already ceased as administrator of the
conjugal property; the claim for this amount had to be filed
in the testamentary proceedings of Fausta Macasaquit.
Having to be filed according to Act No. 3176 under the
provisions of the Code of Civil Procedure relative to the
administration and liquidation of properties of deceased
persons, it should be filed before the committee on claims in
said testamentary proceedings and, at all events, thereafter,
by appeal to the corresponding Court of First Instance, in an
ordinary action against the judicial administratrix.
On the other hand, he property described in the complaint is
included among the inventoried properties subject to the
testamentary proceedings of Fausta Macasaquit because,
belonging as it does to the conjugal property, it should,
under Act No. 3176, be included among the properties of the
testamentary proceedings.

We conclude that, Eulalio Calma having ceased as legal

administrator of the conjugal property had with his wife
Fausta Macasaquit, no complaint can be brought against him
for the recovery of an indebtedness chargeable against said
conjugal property, and that the action should be instituted in
the testamentary proceedings of the deceased Fausta
Macasaquit in the manner provided by law, by filing it first
with the committee on claims.

LOURDES POTENCIANO, defendants.

VICTOR POTENCIANO and LOURDES
POTENCIANO, defendants-appellants.

Wherefore, we hold that the sale of the property described

in the complaint, made by the sheriff in execution of the
judgment rendered against Eulalio Calma for the collection
of the indebtedness chargeable against the conjugal
property, is void and said property should be deemed
subject to the testamentary proceedings of the deceased
Fausta Macasaquit for all the purposes of that case.

This is an appeal by certiorari form a decision of the Court of

Appeals.

The appealed judgment is reversed, without

pronouncement as to the costs. So ordered.

special

22. Ocampo v Potenciano

G.R. No. L-2263

May 30, 1951

PAZ Y. OCAMPO, JOSEFA Y. OCAMPO, ISIDRO Y.

OCAMPO, GIL Y. OCAMPO, MAURO Y. OCAMPO, and
VICENTE Y. OCAMPO, plaintiffs-appellees,
vs.
CONRADO POTENCIANO, VICTOR POTENCIANO and

Salvador P. de Tangle for appellants.

Amado A. Yatco and Rosendo J. Tansinsin for appellees.
REYES, J.:

From the findings of fact of said court, which are conclusive

for the purposes of this appeal, it appears that on February
3, 1930, Edilberto Ocampo, married to Paz Yatco, executed a
deed purporting to convey to his relative, Conrado
Potenciano, and the latter's wife, Rufina Reyes, by way of
sale with pacto de retro for the sum of P2,5000, a town a lot
with a house as strong materials standing thereon. On that
same day, Ocampo signed another document, making it
appear that, for an annual rental of P300, which, as may be
noted, is equivalent to 12 per cent of the purchase price, the
vendees were leasing to him the house and lot for the
duration of the redemption period.
The property involved in the above transaction is located at
the center of the poblacion of Bian, Laguna, and in the
opinion of the Court of Appeals, worth between 20 and 25
pesos. Though registered in the name of Ocampo alone, it in
reality belonged to him and his wife as conjugal property.
The period originally fixed for the repurchase was one year,
"extendible to another year," but several extensions were
granted, with the vendor paying part of the principal in
addition to interests. The last extension granted was for

year from February 3, 1937, and the period having elapsed

without the repurchase having been made, Potenciano, on
January 24, 1939, filed with the register of deeds of Laguna
an affidavit for the consolidation of title, on the strength
which the register of deeds issued transfer certificate of title
no. 18056 in the name of Potenciano and his wife. This,
however, did not close the avenue for settlement, for on
February 28, 1939, with Edilberto Ocampo and Rufina Reyes
already dead, Potenciano gave Paz Yatco an option to
repurchase the property for P2,500 within 5 years, and a
lease thereon for the same period of time at annual rental of
P300 which, as may again be noted, is equivalent to 12 per
cent of the purchase price. On or about February 7, 1944,
Paz Yatco sought to exercise the option by tendering to
Potenciano at his clinic in Manila the sum of P4,000 an
amount sufficient to cover both principal and interest, and
upon the tender being rejected, deposited the money in
court and brought an action in her own name and as judicial
administratrix of the estate of her deceased husband to
compel Potenciano to accept it and to have the title to the
property reinstated in her name and that of her husband.
Intervening in the case, Potenciano's children, Victor and
Lourdes, filed a cross-complaint, alleging that the option to
purchase granted by their father to plaintiff on February 28,
1939, was null and void as to the share of their deceased
mother Rufina Reyes in the property in litigation, which
share passed to them by right of inheritance, and that as to
their father's share in the same property they, the
intervenors, were exercising the right of redemption
accorded by law to co-owners of property held in common,
for which purpose they had already tendered him the sum of
P1,250 on the fifth day after they learned of said option
through plaintiff's complaint. To meet these allegations,
plaintiff amended her complaint by including the intervenors
as defendants and alleging, in effect, that the pacto de

retro sale in question was in reality a mortgage to secure a

pre-existing debt, with the rental contract thrown in to cover
the stipulated interest of 12 per cent; that the option
agreement for the repurchase of the property within five
years from February 28, 1939, and for the payment of rental
for that period in an amount equal to an annual interest of
12 per cent on the loan, was also meant to be in reality an
extension of the life of the mortgage; and that the tender of
payment was valid, the same having been made within the
extended period. The Court of First Instance, after trial,
upheld these allegations and gave judgment in favor of the
children of Edilberto Ocampo and Paz Yatco, who had
substituted the latter after her death.
When the case was elevated to the Court of Appeals, that
court took a somewhat different view and rendered
judgment declaring:
(a) That contract Exhibit A entered into between
Edilberto Ocampo and Conrado Potenciano was one
of mortgage, with interest at the rate of 12 per cent
per annum;
(b) That the "option to purchase" and the "contract of
lease" (Exhibit E and E-1) were validly executed by
defendant Conrado Potenciano and binding upon the
property in litigation;
(c) That appellants were not co-owners of said
property, by inheritance of one-half of the same from
their deceased mother Rufina Reyes;
(d) That appellants were not entitled to exercise the
right of legal redemption (retracto legal) of the other
half of the property belonging to their father Conrado
Potenciano;

(e) That the late Paz Yatco exercised her option to

purchase the property in litigation within the time
she had to do so;

themselves over the property given as security. The

consolidation of title effected by Potenciano in this case was,
therefore, null and void.

(f) That the consignation of the P4,000 in Japanese

military notes, made with the Clerk of the Court of
First Instance of Laguna in payment of the property in
question, was in accordance with the law and
relieved the heirs of the spouses Ocampo-Yatco from
paying anew said purchase price;

The Court of Appeals, however, held that the mortgage

contract was superseded, through novation, by the option
agreement for the repurchase of the property mortgaged,
and the appellants now contend that this war error because
Potenciano had no authority to enter into that agreement
after the death of his wife. To this contention we have to
agree. The Court of Appeals erred in supposing that the
surviving
spouse
had
such
authority
as de
factoadministrator of the conjugal estate. As pointed out by
appellants, the decisions relied on by that court in support of
its view are now obsolete. Those decisions laid down the
rule that, upon the dissolution of the marriage by the death
of the wife, the husband must liquidate the partnership
affairs. But the procedure has been changed by Act No.
3176 (approved on November 24, 1924), now section 2, Rule
75, of the Rules of Court, which provides that when the
marriage is dissolved by the death of either husband or wife,
the partnership affairs must be liquidated in the testate or
intestate proceedings of the deceased spouse (Moran,
Comments on the Rules of Court, 3rd ed., Vol. II, p. 324).

(g) Ordering defendant Conrado Potenciano to

execute the corresponding deed of conveyance,
sufficient in law to transfer the title of the property in
litigation to the heirs of the deceased spouses
Edilberto Ocampo and Paz Yatco; and
(h) Ordering the Register of Deeds of Laguna to
cancel transfer certificate of title No. 18056 (Exhibit
1) and issue in lieu thereof a new transfer certificate
of title for said property in favor of the heirs of the
spouses Edilberto Ocampo and Paz Yatco, upon
payment by appellees of the corresponding fees and
the registration in his office of the deed of
conveyance mentioned in the next preceding
paragraph.
This judgment that is now before us for review.
First thing to be noted is that the Court of Appeals found and
it is not disputed that the pacto de retro sale made by
Edilberto Ocampo in favor of Conrado Potenciano and his
wife was in reality a loan with security or an equitable
mortgage, with simulated rental for interest. Such being the
case, the lenders had no right, through the unilateral
declaration of one or both them, to consolidate title in

Furthermore, there is ground to believe that, as alleged by

the appellees, the option agreement in question was nothing
more than mere extension of time for the payment of the
mortgagee debt, since in the mind of the parties the real
transaction had between them was that of loan with
security, or equitable mortgage, though as is usual in these
cases, it was given the form of sale with right to repurchase.
It follows from the foregoing that at the time Paz Yatco made
the tender of payment and consigned the necessary amount
in court, the said contract of loan with security was still in

effect, and as the tender was made in legal currency (Haw

Pia vs. China Banking Corporation,* 45 O.G. [Supp. 9] 229),
the tender and consignation must be held to produce their
legal effect, which is that of relieving the debtor from
liability. (Art. 1176, Civil Code; Limkakovs. Teodoro, 74 Phil.,
313.)
Under this view of the case, it is not necessary to consider
the claim of the appellants Victor Potenciano and Lourdes
Potenciano and that the Court of Appeals erred in not
declaring them owners of the property in question, they
having inherited one-half of it from their mother and
acquired the other half from their father in the exercise of
their right of legal redemption as co-owners. As ownership in
the property never passed to their parents, these appellants
acquired nothing.
Wherefore, with the modifications of the judgment below, let
judgment be entered, declaring the obligation evidenced by
Exhibit "A", which is hereby held to be mere contract of loan
with security or equitable mortgage, already discharged,
and ordering the Register of Deeds of Laguna to cancel
transfer certificate of title No. 18056 and to issue in lieu
thereof a new certificate of title for said property in favor of
the heirs of the spouses Edilberto Ocampo and Paz Yatco
upon payment of the corresponding fees. With costs against
the appellants.

23. Prado v Natividad

G.R. No. L-23235

August 27, 1925

JOSE M. PRADO, administrator of the estate of Maria

Prado, deceased, plaintiff-appellant,
vs.
CASIMIRO NATIVIDAD, defendant-appellee.
Gregorio Perfecto for appellant.
Manly, Goddard and Lockwood for appellee.
VILLA-REAL, J.:
Casimiro Natividad and Maria Prado contracted marriage in
the month of May, 1889. Casimiro Natividad brought to the
marriage some real properties which he had received from
his mother as his future share in her inheritance. Maria
Prado did not bring anything. During the marriage the
spouses acquired on different dates real and personal

properties. On April 27, 1904, Maria Prado died from

pulmonary tuberculosis in Manila, where she had been taken
for treatment.

After trial, the lower court rendered judgment, holding that

no residue existed which should be divided between the
husband and the heirs, and dismissing the complaint.

On the 14th day of February, 1917, Jose Maria Prado, in his

capacity as administrator of the estate of the deceased
Maria Prado, filed a complaint in the Court of First Instance
of Camarines Sur against Casimiro Natividad, wherein he
alleged that the latter had refused to make an liquidation of
the estate of the conjugal partnership brought into existence
by the marriage of Casimiro Natividad and the deceased
Maria Prado and which was dissolved by the death of the
latter, and prayed the court for judgment, decreeing the
liquidation of said partnership, adjudicating to the plaintiff
administrator one-half of the conjugal property described in
the complaint with its products, that is to say, one-half of
P26,125, Philippine currency, with the costs of the action.

From this judgment the plaintiff Jose Maria Prado took an

appeal by bill of exceptions, assigning to the judgment of
the trial court, as the basis of his appeal, four supposed
errors which may be reduced to the following: First, its
failure to decree the liquidation of the conjugal partnership
formed by the spouses Casimiro Natividad and Maria Prado;
second, the fact of the lower court having taken into account
the value of the property of the conjugal partnership at the
time of the acquisition thereof, and not of its liquidation: and
third, the fact of its having taken into consideration the
supposed debt of P17,428.98.

In answer to the complaint, Casimiro Natividad admitted the

allegations contained in the first, second, and third
paragraphs thereof and denied generally and specifically all
the rest, and as special defense alleged: (1) That the
plaintiff had no legal capacity to sue and maintain this actin;
(2) that the estate of the conjugal partnership constituted
between him and his deceased wife Maria Prado had already
been liquidated, no conjugal property having been found to
exist, but a loss of P10,000: (3) that the heirs of Maria Prado
owe him the sum of P1,460; and (4) that the action brought
by the plaintiff has already prescribed.
The plaintiff, in reply to the answer, denied each and every
allegation contained in the first, second, third, and fourth
paragraphs thereof.

The complaint filed herein contains a detailed statement of

the movable and immovable properties that were acquired
during marriage. At the trial of the case, evidence was
introduced tending to show the existence of said properties
with their prices and fruits. Also evidence was introduced in
an attempt to show the true expenses incurred during the
administration of the conjugal partnership. With that
evidence in the record, it is not necessary to order the
defendant, in his capacity as administrator of the estate of
said partnership, to make a formal liquidation thereof;
because what was done during the trial of the case amounts
to a liquidation, and to make another one would be to do
double work, and would give rise to new controversies when
the liquidation is submitted for the contesting thereof by the
adverse party. The trial court has not, therefore, committed
any error in not ordering a formal liquidation.
As to the appraisal of the real property of the conjugal
partnership, it is not the purchase, but the market, or in
default thereof, the assessed, value at the time of the

liquidation that must be taken into account. (Art. 1428 in

connection with art. 1367 of the Civil Code.) Urban, as well
as rural, property has its value in the market which rises and
falls according to the movement of the population, market,
and trade, and it is not just nor equitable that the conjugal
partnership should not share the advantages or
disadvantages that those fluctuations give to its property.
The evidence shows that during the marriage the spouses
began to build a house of strong materials which remained
unfinished until the dissolution of the conjugal partnership
by the death of the wife Maria Prado, and cost P3,000. Upon
the death of Maria Prado the defendant had the building
finished, spending P2,000 more out of his own money. At the
termination of the house, it was assessed at P10,654, its
value having, therefore, increased by P5,654, of which
increase P3,392.40 must correspond to the P3,000 which
was the cost of the house not finished at the death of Maria
Prado, making a total of P6,391.40. The lands in Burobandan
which were acquired during marriage, had an area of 15
hectares approximately. After the dissolution of the conjugal
partnership the defendant acquired 80 hectares more which
added to the 15 hectares formed a single tract of 95
hectares which was assessed at P9,500, of which P1,500
correspond to the 15 hectares pertaining to the conjugal
partnership. Of the land of 40 hectares in Cabatagan which
was assessed at P3,750, only 5 hectares pertain to the
conjugal partnership and the 35 are private property of the
husband, P469 corresponding to the 5 hectares. The lands in
Sagpon are assessed at P1,072; the one in San Antonio at
P180, and the one in Joyon-Joyon at P150. All of the other
lands, those situated in Catalutoan and San Jose, are
estimated at P1,090. Taking, therefore, into account the
assessed value of the property of the conjugal partnership
at the time of the liquidation, the total value thereof
amounts to P10,853.40.

The appellant contends that the claim in connection with the

debts contracted by Casimiro Natividad for the expenses of
the administration of the property of the conjugal
partnership of the family and the last sickness and funerals
of Maria Prado, should have been filed with the committee
on claims in the intestate proceeding for the settlement of
the estate of Maria Prado. This contention is clearly
untenable, because said debts having been contracted by
Casimiro Natividad as legal administrator of the conjugal
partnership formed by virtue of his marriage with Maria
Prado, must, according to law (art. 1408 of the Civil Code),
be charged to said partnership at the making of the
liquidation thereof and not to the estate of Maria Prado,
inasmuch as she did not personally intervene in obtaining
said loans.
So that even if the assessed value of the estate of the
conjugal partnership at the time of the liquidation be taken
into account, its total value of P10,853.40 would not be
sufficient to cover all the expenses incurred by the
administration of said partnership which amount to the sum
of P17,423.98, and consequently after the sale of said estate
and the payment of the debts with the proceeds thereof
there would be no residue that might be considered as
conjugal property to be distributed among the heirs of Maria
Prado.
In conclusion, while the lower court erred in not taking into
account the assessed value of the estate of the conjugal
partnership at the time of its liquidation, yet that does not
affect the final decision, and the judgment appearing to be
in accordance with the evidence and the law, the same is
hereby affirmed in its entirety, with the costs against the
appellant. So ordered.

24. De la Rama v De la Rama

G.R. No. L-7476

October 9, 1913

AGUEDA BENEDICTO DE LA RAMA, plaintiff-appellant,

vs.
ESTEBAN DE LA RAMA, defendant-appellant.
Hausermann, Cohn and Fisher for plaintiff.
Espiridion Guanko and Jose M.a Arroyo for defendant.
CARSON, J.:
The plaintiff in this action charged her husband with
adultery and prayed for a divorce, the division of the
conjugal property, and alimony pendente lite. Defendant in
his answer denied the adultery charged against him,
charged his wife with adultery, and alleged that his only
income was a salary of P450 per month received as
manager of the firm "Hijos de I. de la Rama." Judgment was
rendered against the defendant by the trial court granting a
divorce, dissolving the conjugal partnership, and allowing
plaintiff the sum of P81,042.76 as her share of the conjugal
property, and P3,200 as alimony.
From this judgment the defendant appealed to this court,
which reversed the judgment of the trial court, being of
opinion that the evidence showed that both plaintiff and
defendant had committed adultery and that neither was
entitled to a divorce.
Thereafter plaintiff appealed to the Supreme Court of the
United States, which reversed the judgment of this court (De
la Rama vs. De la Rama, 201 U. S. 303; 11 Phil. Rep., 746).
The opinion of that court concluded as follows:

We have reached the conclusion that there is no such

preponderance of evidence in favor of the theory of
plaintiff's guilt as authorized the Supreme Court to
set aside the conclusions of the court below upon the
ground that these findings were plainly and
manifestly against the weight of the evidence. In this
connection it is proper to bear in mind that the trial
judge shall all these witnesses before him and
doubtless formed his conclusions largely from their
appearance on the stand, their manner of giving
testimony, and their apparent credibility. Under the
circumstances we think the Supreme Court should
have affirmed rather than reversed the action of the
lower court.
While the right of the plaintiff to her proportion of the
conjugal property, to alimony pending suit, and to
other allowances claimed is the basis of our
jurisdiction, the decree of the Supreme Court in
dismissing plaintiff's petition renders it unnecessary
to review the action of the Court of First Instance in
fixing the amount that it held plaintiff was entitled to
recover. We are, therefore, of the opinion that the
decree of the Supreme Court dismissing the petition
must be reversed and the cause remanded to that
court for further proceedings not inconsistent with
this opinion.
After the case had been remanded to this court, plaintiff
moved that the original judgment of the Court of First
Instance be affirmed. The ruling of this court upon that
motion was in part as follows (7 Phil. Rep., 745):
Upon the defendant's appeal from the Court of First
Instance to this court, eight errors were assigned by

him. The first four relate to the question of adultery.

This court sustained those assignments and said:
"Our conclusion is that neither one of the
parties is entitled to a divorce. The result
makes it unnecessary to consider that part of
the judgment which relates to the settlement
of the conjugal partnership."
The action of this court upon those four assignments
of error relating to adultery was reversed by the
Supreme Court of the United States, and by the
decision of that court they were definitely disposed
of. The other assignments of error relate to the part
of the decision of the Court of First Instance which
treats of the division of the conjugal property, the
allowance of alimony, and the order of the court
below that the case be referred to the fiscal for
criminal proceedings against the defendant. As has
been said, these assignments of error were not
considered by this court in view of the result which it
reached upon the other assignments. Nor were they
discussed by the Supreme Court of the United States.
The claim of the appellant now is, however, that the
whole case was finally disposed of by the decision of
the latter court, and that the only thing remaining for
this court to do is to affirm the judgment of the Court
of First Instance in its entirety.
With this view we cannot agree. The only thing
considered by the Supreme Court of the United
States was that part of the decision of the Court of
First Instance which relate to the right of the plaintiff
to a divorce. It did not pass upon the division of the
conjugal property. Its order was that the case be

remanded to this court for further proceedings not

inconsistent with its opinion. If the contention of the
plaintiff is true, it seems that the order of that court
would have been one reversing the judgment of this
court and affirming that of the Court of First Instance.
By remanding the case to this court for further
proceedings not inconsistent with the opinion of the
Supreme Court, it seems to have been the intention
of that court that this court should dispose of the
assignments of error not already disposed of.
xxx

xxx

xxx

The sixth assignment of error was as follows:

"Error was incurred in fixing the amount of the
half of said alleged conjugal property at
P81,042.75, without having examined the
necessary antecedents and data, and,
moreover, without having taken into account
the losses suffered and the debts contracted
by the firm Hijos de I. de la Rama."
This assignment of error not having been considered
either by the Supreme Court of the United States or
by this court, is now open to consideration by us, and
must, we think, be sustained. The Civil Code states in
detail the manner in which the affairs of a conjugal
partnership shall be settled after the same has been
dissolved. Article 1418 provides, except in certain
cases not here important, that an inventory shall at
once be made. We have held in the case of Alfonso
vs. Natividad (6 Phil. Rep., 240), that when the
partnership is dissolved by the death of the husband
this inventory must be made in the proceedings for
the settlement of his estate. And in the case of Prado

vs. Lagera (7 Phil. Rep., 395), that the inventory thus

formed must include the bienes parafernales of the
wife. It is very evident from the provisions of the Civil
Code that the inventory includes the capital of the
husband, the dowry of the wife, the bienes
parafernales of the wife, and all the property
acquired by the partnership during its existence.
After this inventory has been made it is provided by
article 1421 that there shall be first paid the dowry of
the wife, in the second place the bienes
parafernales of the wife, in the third place the debts
and obligations of the conjugal partnership, and in
the fourth place the capital of the husband. Articles
1424 and 1426 then provides as follows:
"ART. 1424. After the deductions from the
inventoried estate specified in the three
preceding articles have been made, the
remainder of the same estate shall constitute
the assets of the conjugal property."
"ART. 1426. The net remainder of the
partnership property shall be divided, share
and share alike, between the husband and the
wife, or their respective heirs."
It is thus seen that the conjugal property which is to
be divided when the partnership is dissolved is
determined not with reference to the income or
profits which may have been received during the
partnership by the spouses, but rather by the amount
of the actual property possessed by them at such
dissolution after making the deductions and
payments aforesaid. This is positively provided by
article 1424.

An examination of the decision of the Court of First

Instance shows that no attempt was made to comply
with any one of these statutory provision. No
inventory of the partnership property existing at the
time of the trial, at which the liquidation was made,
was ever formed. No provision was made for paying
to the wife the sum of 2,000 pesos which was either
the dowry or bienes parafernales of the wife. No
provision was made for returning to the husband his
capital in the partnership, which amounted to at least
one-third of the assets of the firm of Hijos de I. de la
Rama, which assets, according to the inventory made
January 30, 1901, amounted to 1,130,568 pesos. The
court below rejected entirely the method prescribed
by the Civil Code for the liquidation of this
partnership and in fact liquidated it, as appears from
the decision, upon an entirely different basis. He
determined in the first place the income which each
person had received from his or her property during
the partnership, finding that the wife during that time
had received from her property 345 pesos as income
and that the husband had received 162,430.53
pesos. He then says:
"The total value, therefore, of the conjugal
partnership existing between the plaintiff and
the defendant in the present case amounts to
162,775.53 pesos. The words of the statute
say that the same must be divided share and
share alike. This means that each should have
81,287.76 pesos. The wife already having in
her possession 345 pesos of this sum, she is
entitled to receive from the husband
81,042.76 pesos as being the sum necessary
to equalize the holdings of the property which,

according to the statute, must be regarded as

belonging to the conjugal partnership."
It needs no argument to show that this manner of
liquidating the affairs of the conjugal partnership is
entirely unwarranted by the law. The theory of the
Civil Code is that the conjugal property is the actual
property which is left at the dissolution of the
partnership. It can, therefore, never be determined
by adding up the profits, which had been made each
year during its existence, and then saying that result
is the conjugal property. The difference between the
two system of liquidation is a well illustrated in this
case. The court below found that the profits of the
partnership of Hijos de I. de la Rama from the time of
its organization up to June 30, 1901, amounted to
290,101.31 pesos. The evidence in the case shows,
however, that the capital with which the firm started
was 1,058,192 pesos, and that on June 30, 1901, the
value of its entire property was 1,130,568 pesos, an
increase of only 72,376 pesos. Taking the method
adopted by the court below, if the conjugal
partnership had been dissolved on June 30, 1901, it
would have had as an assets one-fourth of this sum
of 290,101.31 pesos, but following the rule laid down
by the Civil Code it would have only had one-fourth
of 72,376 pesos, the difference between the value of
the property of said firm when it was organized and
its value on the 30th of June, 1901.

payment of 3,200 pesos Mexican currency by the

defendant to the plaintiff, and the costs of the action,
is affirmed. That part of it order in the payment by
the defendant to the plaintiff of 81,042.76 pesos
Mexican currency is set aside, and the case is
remanded to the court below for the purpose of
liquidating in this action the affairs of the conjugal
partnership (considering the same to have been
dissolved on the 5th of July, 1902) in accordance with
the rules laid down in the Civil Code, and a judgment
will be entered in that court for the amount which
appears from such liquidation to be due from the
defendant to the plaintiff.
To the judgment of this court overruling the motion and
sending the case back to the Court of First Instance for a
new trial, plaintiff duly saver her exception.
Upon the new trial in the court below, judgment was
rendered in favor of the plaintiff for the sum of P58,543.37,
with interest at the rate of 6 per cent per annum from July 5,
1902, the date of the original judgment decreeing the
divorce.
From this judgment both plaintiff and defendant appealed,
and the case is once again before us upon their bills of
exception.

The other assignments of error were not urged in the

last brief presented by the appellant and in any
event we do not think they can be sustained.

Plaintiff on this appeal adheres to her contentions set up in

the motion to affirm the original judgment of the Court of
First Instance submitted after the case had been remanded
to this court from the Supreme Court of the United States
and insist that:

The result is that part of the judgment of the Court of

First Instance ordering the divorce, ordering the

This court was without jurisdiction to review the

evidence taken in the court below at the first trial, or

retry the questions of fact, because the defendant

failed to file in the Court of First Instance a motion for
a new trial, upon the ground that the findings of fact
were plainly and manifestly against the weight of
evidence.

The contentions of the defendant-appellant on this appeal

are, substantially, that the trial court erred in its findings of
fact as to the value of the conjugal property, and in the
mode of procedure adopted in liquidating the partnership
assets.

The action of this court of January 23, 1907, in

holding that the motion for a new trial in the Court of
First Instance on the ground that the "conclusions
which in said decision had been deduced from the
facts are contradictory to what the evidence filed in
the case has shown," is a compliance with section
497, paragraph 3, of the Code of Civil Procedure, is
consistent with and contrary to the unanimous
opinion of the Supreme Court of the United States
expressed in the decision of that court on said
identical motion then under consideration by said
court in this cause on appeal, and such ruling,
therefore, is a failure to comply with the mandate of
the said United States Supreme Court.

After a careful review of the entire record, we think that the

findings of fact by the trial judge are fully sustained by the
evidence, and that the method adopted by him in liquidating
the assets of the conjugal partnership was substantially in
accord with the method prescribed in the code and indicated
in our opinion filed with our judgment remanding the case
for a new trial. (De la Rama vs. De la Rama, 7 Phil. Rep.,
745.)

In any event, the findings of the Court of First

Instance were not so "plainly and manifestly against
the weight of evidence," as to authorize this court to
set aside said findings of fact and set aside and annul
the judgment rendered by the trial court based on
said findings of fact.1awphil.net
All of the contentions of plaintiff-appellant in support of
these assignments of error were disposed of in the opinion
filed upon her motion in 1906 in De la Rama vs. De la
Rama (7 Phil. Rep., 745), as appears from the extracts
therefrom hereinbefore set forth; and the court is of opinion
that it should adhere to the position taken at that time.

The principal contention of defendant-appellant on this

appeal is that the trial court erred in failing to deduct from
the amount allowed to the plaintiff-appellant the sum of
P45,567, that being the amount of conjugal property which
defendant claims "had accumulated and come into plaintiff's
possession" at the time when the divorce was granted.
We agree with the trial judge that the evidence of record
fails utterly to sustain this extraordinary contention.
Discussing the defendant's claim in this regard the trial
court said: "The testimony presented by defendant to
establish his claim that plaintiff had accumulated and was in
possession of P45,567 of conjugal property is very uncertain
and unsatisfactory and much of it is not pertinent and
cannot be considered. Much of it relates to transactions
carried on by her in the purchase of nipa and palay some
considerable period prior to July 5, 1902, and to personal
and real property that came into her possession by gift or
purchase (and partly on borrowed funds) some years after
that period. The testimony presented on her behalf in the
most material parts is in flat contradiction of that on behalf

of the defendant, and it appears the more reasonable, and

in conformity with her mode and manner of living. It is the
opinion of this court that the evidence does not show that
on July 5, 1902, the plaintiff was possessed, in the concept
of owner, of property in excess of value over the P2,000
inherited from her father and her individual loans and
indebtedness."
And elsewhere in his opinion the trial judge, commencing
upon defendant's claim, made use of the following
language: "His reason for insisting that she is only entitled
to recover from him less than P1,000 is that he contends
that the testimony presented by him shows that his wife,
since her separation from him in 1892 and up to July 5,
1902, had accumulated by her own efforts and with no other
capital than the P2,000 left her in 1899, the amount of
P45,567 of conjugal property.
That is, the defendant contends that while he, as
manager of a firm of over a million pesos capital,
drawing a large salary with other perquisites, and
having a one-fourth and sometimes a one-third
interest as a copartner, has only succeeded in
acquiring some P50,000 of conjugal property while
his wife, a girl only fifteen years old at the time of
their separation, has supported herself and with only
P2,000, left her in 1889, has by her sole efforts
accumulated P45,000 of conjugal property in the
same period of time.
In so far as defendant-appellant's assignments of error are
based on the action of the trial court in refusing to accept as
true the contents of the document described as Exhibit 1, it
might be sufficient to say that we are of opinion that the
reasons for doing so set forth by the trial judge himself in his
opinion are a sufficient refutation of defendant-appellant's

contention in this regard. Exhibit 1 purports to be an

inventory of the property of the firm of "hijos de I. de la
Rama" as of July 5, 1902. The bulk of the conjugal property.
As pointed out by the trial judge, this inventory appears to
have been prepared by or for the defendant for the
purposes of this action; and in any event it was prepared
after this action was originally instituted and under
conditions which justified the trial judge in believing that the
defendant had every opportunity to intervene in its
preparation and to use his personal influence to have the
document speak favorably to his contentions. Granting that
it is true, as contended by defendant, that this document
was admitted in evidence without objection, it by no means
follows that the trial judge was bound to accept its contents
as true where other evidence of record disclosed its
inaccuracies and its failure correctly to list the properties in
question. It was admitted for what it was worth as evidence,
but in very nature of things, it should not be held as
conclusive of the truth of its contents. We think that the trial
judge is fully sustained by the evidence of record in his
findings that this inventory failed to set forth the true status
of the affairs of the company, and we are of opinion, and so
hold, that there was no error in his findings as to the true
value of the property in question.
What has been said sufficiency disposes of all the errors
assigned. We are of opinion, therefore, that there is nothing
in the record which would justify us in sustaining the
contentions of the defendant-appellant as to error in the
findings of fact or in the conclusions drawn therefrom in the
opinion filed by the trial judge.
The judgment entered in the court below should be and is
hereby affirmed, without costs to either party.

s
s

25. Fulgencio v Gatchalian

G.R. No. L-5772

January 23, 1912

JOSEFA FULGENCIO, plaintiff-appellee,

FERNANDO FULGENCIO, intervener,
vs.
BENITA GATCHALIAN, ET AL., defendants-appellants.
Mariano Lim for appellants.
Vicente Foz for appellee.
TORRES, J.:
This is an appeal raised through a bill of exception by
counsel for the defendants, from a judgment rendered by
the Honorable Judge Isidro Paredes.
On August 17, 1908, Josefa Fulgencio, the administratrix of
the intestate estate of Dionisio Fulgencio, filed with the

Court of First Instance of Pangasinan a written complaint,

amended on the 26th of the same month, against Benita
A house of mixed material, constructed on land belonging to a third party and
Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia
Belen, and Gabriela Lopez, the latter represented situated
by her on calle Rizal of the pueblo of Bautista, assessed at . . . . . . . .
husband, named Paning, alleging that by virtue of letters of
administration, issued in her behalf on July 22, 1908, in case
No. 203, she entered upon the discharge of the duties of her
office with full powers to take possession of and to
administer all the property of the estate of the deceased
Dionisio Fulgencio; that, of the defendants, Benita
Gatchalian is a widow, Petrona, Emeteria and Leoncia,
single, and Gabriela, the wife of the said Panong; that Benita
Gatchalian, by order of July 27, was appointed
administratrix, conjointly with the plaintiff, of the estate of
the said deceased, the required letters of administration
having been issued to her, although, by a writing of the date
of August 6, Gatchalian tendered her resignation as
administratrix, which was accepted by the court, wherefore
the plaintiff was the sole party upon whom it was incumbent
by law to fulfill the said office; that the defendants Petrona,
Emeteria, Leoncia and Gabriela were then incharge of a part
of the estate of the deceased and were under the care and
direction of the defendant Gatchalian; that the deceased,
Dionisio Fulgencio, legally married, in second wedlock, the
defendant Benita Gatchalian, with whom he did not have,
during the time they were married, any surviving or
posthumous child, and left only one legitimate son, by his
first marriage, named Fernando Fulgencio, on marrying
Gatchalian, brought the sum of 2,500 pesos Mexican
currency as shown as private property; that the conjugal
partnership of the deceased Fulgencio with the said
Gatchalian, and the aforementioned sum, produced, up to
the time of the husband's death, several thousands pesos,
all the property of the said partnership consisting of the
following:

P40
0

A lot containing a warehouse, built of strong materials and with four doors, on the
same street and in the same pueblo, assessed at . . . . . . . .
That all property afore-described belonged exclusively to the
conjugal partnership of the deceased Dionisio Fulgencio and
the defendant Benita Gatchalian, with the exception of the
A bakery, called "El Porvenir," with all its accessories and stock, and a cigar and
said sum of 2,500 pesos Mexican currency; that the property
cigarette stand, installed in the house previously described, the reasonable value of
described in the first seven paragraphs above was under the
all of which is . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
control and in the legal possession of the defendants Benita
Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia Belen
and Gabriela Lopez, and that the defendant Gatchalian was,
with the exception of such property, insolvent; that a
demand having repeatedly been made upon the defendants
A bazar of foreign and domestic articles and a shop for the sale of cloth, installed in
for the friendly delivery by them of the said property, they
the said warehouse and reasonably worth . . . . . . . . . . . . . . . . .
categorically refused to deliver the same, and that such
property was liable to disappear and suffer material
damages unless a receiver were appointed for its
preservation and administration during the pendency of the
A share of stock in a cockpit in the municipality of Bautista, worth . . . . . . . .
suit, as indeed a part of the property in question had already
disappeared.

For the foregoing reasons, the plaintiff asked that a person,

whose name was not expressed, be appointed as receiver of
the property described in the 8th paragraph of her
complaint, and that the court order that, after taking oath
and giving bond, the defendants deliver, to the receiver
Various articles of household furniture, reasonably worth, altogether . . . . .
appointed, the property aforementioned; that in due season
judgment be rendered declaring that Dionisio Fulgencio, on
marrying Benita Gatchalian, brought to the marriage the
sum of 2,500 pesos, which should be deducted from the
Four shops for the sale of cloth, situated in the market of Bautista, worth
community property; that the other property enumerated
altogether, at a reasonable valuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
belongs exclusively to the conjugal partnership; that the
plaintiff has a perfect right to ask for the appointment of a
receiver who shall be entitled to the possession of the said
al . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
property for the purpose of preserving and administering it,
Three carabaos, reasonably worth, altogether . . . . . . . . . . . . . . . . . . . . . . . . .

4,47
90

and that judgment be rendered in her behalf, against the

defendants.
Counsel for the defendants, answering the preceding
complaint, set forth: that the defendants Petrona Clavo,
Emeteria Cristobal, Leoncia Belen, and Gabriela Lopez,
instead of the erroneous names under which the last three
appear to have been designated, denied absolutely each
and all of the facts alleged against them in the complaint;
and that the defendant Benita Gatchalian admitted the facts
related in paragraph 1, 2, 3, 4, and 6, but specifically denied
those referred to in paragraphs 5, 7, 8, 9, 10, 11, 12, and 13,
of the same.

and detriment were an order not issued directing the

discharge of the receiver; and she further petitioned the
court for the discontinuance of the receivership of the
property in question and the discharge of the said receiver
from his office, in accordance with section 180 of act No.
190, and offered to give bond, should the court so require,
as security for the property in litigation and any loss and
damages which might be found in behalf of the plaintiff, and
finally, asked that all the defendants be absolved from the
complaint, stating the property specified under letters A, B,
C, D, E, F, and G did not belong to the conjugal partnership,
but exclusively to the defendant, Benita Gatchalian, and
asked that the plaintiff be sentenced to pay the costs.

As a special defense, Gatchalian added that her deceased

husband, Dionisio Fulgencio, on his marriage with her,
brought as property of his own only a few articles from his
drug store, amounting to the sum of 100 pesos; that the
defendant Gatchalian, on her marriage with the said
deceased, brought 9,000 pesos in cash and 3,000 pesos in
goods; that the profits obtained by the widow Gatchalian, in
the business in which she engaged with the said sum, as
well as with the 100 pesos brought in by her deceased
husband, were squandered by the latter in his lifetime in
gambling, and that consequently, the capital brought to the
marriage by Gatchalian, far from increasing, was
considerably diminished; that all the property designated
under the letters A and G, paragraph 8 of the complaint, was
acquired by the defendant Gatchalian with her own funds,
except the effects mentioned under letters C and D, which
were the subject matter of current accounts, yet unsettled,
with various commercial houses in Manila; that the
receivership for the property in litigation, as adjudged by the
court, was unnecessary for the reasons already stated, and
as shown by the affidavits attached, and that the defendant
Gatchalian would suffer considerable and irreparable loss

The guardian of the minor Fernando Fulgencio, by a writing

of October 10, 1908, set forth that the latter was the
legitimate son of the deceased spouses Dionisio Fulgencio
and Tecla Monzon who died intestate, the former in Calasiao
on June 30, 1908, and the latter in the city of Manila on June
4, 1897; that the deceased Monzon was the first wife of
Fulgencio, and left as her sole heir by operation of law the
said minor, with property in Manila consisting of a native
dry-goods store, which property was sold unconditionally by
her deceased husband on December 30, 1897, for 3,000
pesos Mexican currency, half of which sum, or 1,500 pesos,
belonged to the minor, Fernando Fulgencio, as the heir by
force of law of the deceased Tecla Monzon, but remained in
the control of his father Fulgencio during the latter's lifetime
and was brought by him upon his marriage, in second
wedlock, with the defendant Benita Gatchalian and included
in the estate left by the deceased Dionisio Fulgencio, which
estate was being illegally held by the defendant; that the
sum of 1,500 pesos should bear legal interest at six per cent
per annum from December 30, 1897, until it should be
delivered to the minor, its owner, who several times
demanded of the plaintiff, Josefa Fulgencio, and of the

defendants, the delivery to him of the said sum, with

interest, in Philippine currency; that they refused to accede
to the claim of the said minor, who thereby suffered damage
to the amount of 100 pesos; therefore, the guardian prayed
that judgment be rendered sentencing the defendants
Benita Gatchalian, Petrona Clavo, Emeteria Cristobal,
Leoncia Belen and Gabriela Lopez to deliver to the said
minor the said sum of 1,500 pesos Mexican currency, or its
equivalent in Philippine currency, together with legal
interest thereon, secured by the property of the intestate
estate of the deceased Dionisio Fulgencio, to the payment of
100 pesos for loss and damage, and the costs.
The defendants, in answer to the complaint of the
intervener, Fernando Fulgencio, made a specific and general
denial of each and all allegations of each and all of the
paragraphs of the said complaint.
As a special defense, they all set up the same allegations of
the special defense contained in the written answer to the
complaint of the administratrix, Josefa Fulgencio.
On motion for dismissal, they set forth: That the claim of the
intervener has for its purpose the collection of money from
the intestate estate of Dionisio Fulgencio, wherefore the said
claim should be dismissed in accordance with section 119, in
connection with sections 669, 686, 700, and 703, of the
Code of Civil Procedure; that the intervener, as the son and
heir of the deceased Dionisio Fulgencio, is not entitled to sue
the defendant administratrix until his share of the estate
shall have been adjudicated to him, pursuant to section 704
of the Code of Civil Procedure, and therefore they asked for
the absolution of the defendants from the dismissal of this
case with respect to the intervener, with the costs against
the former.

After the trial and the introduction of evidence adduced by

the parties, the court, on December 29, 1908, rendered
judgment absolving the defendant, Gabriel Lopez, from the
complaint, and sentencing the defendants, Benita
Gatchalian, Petrona Clavo, Emeteria Cristobal, and Leoncia
Belen, to deliver to the plaintiff the property of the estate of
the deceased Dionisio Fulgencio, which they were retaining
in their possession, and to pay the costs, dismissed the
other petitions of the complaint and answer as well as the
claim of the intervener, Fernando Fulgencio, and discharged
the receiver, Aproniano Santos, canceling the bond executed
by the latter. To this judgment the defendants excepted and
moved for a rehearing on the grounds that the evidence did
not sufficiently support the judgment and that the latter was
contrary to law, equity and justice, and announced their
intention to appeal, which motion was overruled by an order
of November 11, 1909. Exception thereto was taken by the
defendants, and, the proper bill of exceptions being
presented, the same was approved and forwarded to the
clerk of this court.
It is sought in this litigation to have the judicial
administratrix of the intestate succession of the deceased
Dionisio Fulgencio given possession of the property of
different kinds, which constitute the estate of the said
deceased and are now under the control of the latter's
widow, Benita Gatchalian, and the other defendants.
The said widow was appointed administratrix of the estate
of her deceased husband, jointly with the plaintiff, Josefa
Fulgencio, a sister of the latter; but the widow, Benita
Gatchalian, expressly renounced the appointment, and
Josefa Fulgencio remained the sole administratrix of the
intestate estate and, in the fulfillment of the duties of her
office, among the other things asked that there be restored
to her the possession of the property left by the deceased,

consisting chiefly of conjugal partnership property, in order

that the might preserve and administer the same belonging
to the estate of which she was the administratrix.
The defendants denied the allegations of the complaint, and
one of them, the said widow, Benita Gatchalian alleged: that
her deceased husband only brought, when they were
married, certain drugstores effects which were worth about
one hundred pesos, while she brought to the conjugal
partnership 9,000 pesos in cash and goods to the value of
3,000 pesos, and acquired by use of her funds the property
described in the complaint, expecting a portion thereof
which was the subject matter of accounts current, yet
unsettled, with various commercial firms of Manila; she
therefore prayed that they be absolved from the complaint,
and that the property described in the complaint be held to
the private exclusive property of the widow, Benita
Gatchalian, and not conjugal partnership property.
It is fact, proved by the record, that the conjugal partnership
formed between Dionisio Fulgencio, during his lifetime, and
Benita Gatchalian and dissolved by the husband's death,
owed several large debts and the testamentary executrix, in
the fulfillment of her duty, has a right to claim the
possession of all the property belonging to the estate of
which she is the judicial administratrix, in order that,
pursuant law, she may make the required inventory and
proceed, with the authorization of the court, to pay the
debts duly presented to the commissioners of appraisal
appointed in the special proceedings. It is an
incontrovertible principle of law that, before proceeding with
the division among the heirs, of the property left to them by
the deceased predecessor in interest, without prejudice to
the rights of the surviving widow, in relation to her own
property which does not form a part of the conjugal

partnership property nor is liable for the payment of the

obligations existing against the conjugal partnership.
Evidence was introduced to prove that the widow, Benita
Gatchalian, on contracting marriage with the now deceased
Dionisio Fulgencio, brought to the conjugal partnership,
property worth about twelve thousand pesos, being
paraphernalia of the wife's exclusive ownership; but once
included among the property of the conjugal partnership, a
demand for its exclusion on the part of its legitimate owner
could properly be made only after the formation of the
inventory of the property that constitutes the estate of her
deceased husband.
If the widow Benita Gatchalian now held the office of
testamentary executrix, it would be her duty to make the
inventory of the property belonging to the marriage
dissolved by the death of her husband, and she would settle
the claims which in any and all matters might be addressed
to her against the intestate succession of her deceased
husband; however, the duties of the office of testamentary
executor being performed by another person, and there
being debts of considerable amount to settle, the judicial
administratrix is entitled to demand that she be placed in
possession of the property that forms the assets of the
intestate estate, in order that she may proceed to inventory
the same and to pay the legitimate debts duly claimed in
the special intestate proceedings, exception being made of
and without prejudice to the rights of the widow with respect
to her paraphernal property, which is not liable for the debts
of the conjugal partnership.
At the beginning of the hearing of this case, the attorneys
for both parties agreed that the following facts should be
considered as proven:

1. That the drygoods stores managed by the

defendants Petrona Clavo, Emeteria Cristobal and
Leoncia de Belen, are inscribed in the tax register in
the name of the deceased Dionisio Fulgencio;

Among other obligations expressly specified in article 1408

of the same code, as being those for which the conjugal
partneship shall be liable, are the debts and obligations
contracted during the marriage.

2. That the property, said in the answer to be the

subject matter of the accounts current and which
according to the complaint consists of a bakery, a
cigar and cigarette stand, a bazar for the sale of
foreign and domestic articles, and a dry-goods shop,
is also inscribed in the said tax register in the name
of the same deceased, Dionisio Fulgencio; and

If it be not proven conclusively that the property claimed by

the administratrix is paraphernalia and belongs exclusively
to the defendant Benita Gatchalian, it must be deemed to
be conjugal partnership property, liable for the debts of the
conjugal partnership, and therefore, by virtue of the
preinserted agreement, the administratrix has a right to be
placed in possession of the same for the purpose of its
inventory in the special proceedings, without prejudice to
the rights of the widow Benita Gatchalian in relation to her
own property or to that of the nature of paraphernalia, for,
once the inventory of the property of the intestate estate
has been made, the latter will have the same opportunity to
claim the exclusion of the property belonging to her
exclusively and that of the nature of paraphernalia.

3. That all the other property described in the

complaint, except the drygoods store managed by
the defendant Gabriela Lopez, was acquired during
the marriage of the said Dionisio Fulgencio and
Benita Gatchalian and is in the name of the said
Dionisio Fulgencio in the respective documents
pertaining thereto.
This agreement lends greater weight to the plaintiff
administratrix's claim, because, if the property at present
under the control of the widow is of a paraphernal nature, it
must necessarily be inventoried as belonging to the estate
of the deceased Dionisio Fulgencio.
Article 1407 of the Civil Code provides:
All of the property of the marriage shall be
considered as partnership property until it is proven
that it belongs exclusively to the husband or to the
wife.

For the foregoing reasons, wherein the errors assigned to

the judgment appealed from have been refuted, and
admitting those alleged with relation to Gabriela Lopez and
Fernando Fulgencio, it is proper, in our opinion, to affirm as
we do hereby affirm the said judgment, with the costs
against the appellant.

desires that her civil status be defined in order that she may
be relieved of any liability under the law.

26. Lukban v Republic

G.R. No. L-8492. February 29, 1956.]
In the Matter of the Declaration of the Civil Status
of: LOURDES G. LUKBAN, Petitioner-Appellant, vs.
REPUBLIC OF THE PHILIPPINES, Oppositor-Appellee.
DECISION
BAUTISTA ANGELO, J.:
This is a petition filed in the Court of First Instance of Rizal
for a declaration that Petitioner is a widow of her husband
Francisco Chuidian who is presumed to be dead and has no
legal impediment to contract a subsequent marriage.
The Solicitor General opposed the petition on the ground
that the same is not authorized by law. After Petitioner had
presented her evidence, the court sustained the opposition
and dismissed the petition. Hence this appeal.
Lourdes G. Lukban, Petitioner herein, contracted marriage
with Francisco Chuidian on December 10, 1933 at the Paco
Catholic Church, Manila. On December 27, of the same year,
Francisco left Lourdes after a violent quarrel and since then
he has not been heard from despite diligent search made by
her. She also inquired about him from his parents and
friends but no one was able to indicate his whereabouts. She
has no knowledge if he is still alive, his last known address
being Calle Merced, Paco, Manila. She believes that he is
already dead because he had been absent for more than
twenty years, and because she intends to marry again, she

We believe that the petition at bar comes within the purview

of our decision in the case of Nicolai Szartraw, 46 Off. Gaz.,
1st Sup., 243, wherein it was held that a petition for judicial
declaration that Petitioners husband is presumed to be
dead cannot be entertained because it is not authorized by
law, and if such declaration cannot be made in a special
proceeding similar to the present, much less can the court
determine the status of Petitioner as a widow since this
matter must of necessity depend upon the fact of death of
the husband. This the court can declare upon proper
evidence, but not to decree that he is merely presumed to
be dead. (Nicolai Szartraw, 46 Off. Gaz., 1st sup. 243).
The philosophy behind the ruling that such judicial
pronouncement cannot be made in a proceeding of this
nature is well expressed in the case above-cited. Thus, we
there said that A judicial pronouncement to that effect,
even if final and executory, would still be a prima facie
presumption only. It is still disputable. It is for that reason
that it cannot be the subject of a judicial pronouncement or
declaration, if it is the only question or matter involved in a
case, or upon which a competent court has to pass cralaw.
It is, therefore, clear that a judicial declaration that a person
is presumptively dead, because he had been unheard from
in seven years, being a presumption juris tantum only,
subject to contrary proof, cannot reach the stage of finality
or become final.
Appellant claims that the remedy she is seeking for can be
granted in the present proceedings because in the case of
Hagans vs. Wislizenus, 42 Phil., 880, it was declared that a
special proceeding is an application or proceeding to
establish the status or right of a party, or a particular
fact; chan roblesvirtualawlibrarybut, as already said, that
remedy can be invoked if the purpose is to seek the

declaration of death of the husband, and not, as in the

present case, to establish a presumption of death. If it can
be satisfactorily proven that the husband is dead, the court
would not certainly deny a declaration to that effect as has
been intimated in the case of Nicolas Szartraw, supra.
Appellant also claims that the present petition can be
entertained because article 349 of the Revised Penal Code,
in defining bigamy, provides that a person commits that
crime if he contracts a second marriage before the absent
spouse has been declared presumptively dead by means of
a judgment rendered in the proper proceedings and, it is
claimed, the present petition comes within the purview of
this legal provision. The argument is untenable for the words
proper proceedings used in said article can only refer to
those authorized by law such as those which refer to the
administration or settlement of the estate of a deceased
person (Articles 390 and 391, new Civil Code). That such is
the correct interpretation of the provision in question finds
support in the case of Jones vs. Hortiguela, 64 Phil., 179,
wherein
this
Court
made
the
following
comment:chanroblesvirtuallawlibrary
For the purposes of the civil marriage law, it is not
necessary to have the former spouse judicially declared an
absentee. The declaration of absence made in accordance
with the provisions of the Civil Code has for its sole purpose
to enable the taking of the necessary precautions for the
administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires
that the former spouse has been absent for seven
consecutive years at the time of the second marriage, that
the spouse present does not know his or her former spouse
to be living, that each former spouse is generally reputed to
be dead and the spouse present so believes at the time of
the celebration of the marriage (section III, paragraph 2,
General Orders, No. 68).

The decision appealed from

pronouncement as to costs.

is

affirmed,

without