COMPARATIVE REPORT

Title: Bautista vs. Tiongson, et al.

In this case, Felix Bautista (plaintiff), administrator of intestate estate of Ciriaco

Tiongson, asked for the partition of the 5 parcels of land, alleged in the complaint to be co-
owned by deceased and his sister, Aquilina Tiongson (defendant), which inherited from their
late father. However, the defendants stated in their answer that, at the time of the death of
Ciriaco, the only plot of land held jointly by the latter and by defendants was the first of those
described in the complaint, because the four remaining were owned exclusively by the
defendants who had purchased the same from the late Ciriaco.

The administrator of an intestate estate is not authorized by any of the sections 181-196
of the Code of Civil Procedure to maintain an action to enforce the partition of real estate not
included in the inventory, or of which he did not take charge when he commenced to discharge
his office, but which is in the possession of a third party who alleges that he is not a coheir or
co-owner but the exclusive owner of the same. The heirs of the deceased are alone entitled to
maintain an action to enforce the partition of real estate possessed by coheirs or co-owners in
common with the deceased.

Thus, the right of action for partition pertains only to the heirs of the late Ciriaco
Tiongson and not to Bautista. As administrator, he is not authorized to represent the intestate
succession of the property administered by him, neither is he authorized to represent the heirs,
because the latter, as successors to the deceased, are the only parties who may maintain such
an action for partition of real estate held pro indiviso by coheirs.

Titile: Albano vs. Agtarap, et al.

In this this case, Silverio Agtarap and his 3 other siblings, inherited from their father
several parcels of land. Later Silverio died and his siblings took possession of the lands in
question, excluding the other alleged heirs, Eugenia and her mother, Juana Domingo, the
alleged widow of Silverio, from participation therein. Rodrigo Albano (plaintiff), administrator of
the intestate estate of Silverio instituted a claim for the portion belonging to former.

The law provides that a claim made by the administrator of an intestate estate for
recognition of the right the decedent has to a portion of the property, held by persons who are
heirs with him, should be enforced by an action for partition, and the trial in such case should
terminate with the judgment fixing the portion that belongs to the said decedent.

Thus, Albano’s claim was granted and the court ordered that one-fourth part of the
property be delivered to the administrator of the intestate estate of the late Silverio, as his
legacy, so that, after proper proceedings, their respective portion may be adjudicated to his
widow and other heirs.
(PLEASE READ DISSENTING OPINION:

Mr. Freeman, in his article on Partition in the Cyclopedia of Law and Procedure (vol. 30, p. 198.)
says:

By the common law executors and administrators acquired a qualified title to the
personal property of the decedent, and, when his interest therein was that of a cotenant,
must have been authorized to compel partition. As to real property, neither at common
law nor under any statute does an executor or administrator take any title . . . . Neither
can compel partition, in the absence of a statute authorizing it.

In the American and English Encyclopedia of Law (vol. 21, pp. 1155 and 1156) appears this
statement of the law;

In the absence of statutory authority thereof, the executor or administrator of one who
owned an undivided interest in real estate has not, merely by reason of such office, such
title to decedent's realty as will authorize the maintenance of an action of partition.

Crosswell, in his work on Executors and Administrators (pp. 207 and 208), speaking of an
executor or administrator, says:

In the lands and other real property of the decedent he has no interest, as a general rule,
except so far as may be given to him by the statute, or in case of an executor, by the will
of the deceased.

So far as I can ascertain, nowhere in the law of these Islands is an administrator given power to
bring an action for the partition of real estate. The persons and the only persons authorized to
bring such an action are those mentioned in section 181 of the Code of Civil Procedure. It
reads:

Partition of real estate. A person having or holding real estate with others, in any form of
joint tenancy, or tenancy in common, may compel partition thereof in the manner
hereinafter prescribed.